Skip to main content

Full text of "Elements of ecclesiastical law"

See other formats


-QJ 



! m 






V6-.V? 









r, 















n 






ST. 



EX LIBRIS 
BASIL S SCHOLASTICATE 




ECCLESIASTICAL 



COMPILED WITH REFERENCE TO 



THE "CONST. APOSTOLICAE SEDIS " OF POPE PIUS IX., THE 

COUNCIL OF THE VATICAN, AND THE LATEST 

DECISIONS OF THE ROMAN 

CONGREGATIONS. 



ADAPTED ESPECIALLY TO THE DISCIPLINE OF THE CHURCH IN THE UNITED 

STATES, ACCORDING TO THE RECENT INSTRUCTION "CUM MAGNOPERE," 

AND THE THIRD PLENARY COUNCIL OF BALTIMORE. 



REV. S. B. SMITH, D.D., 

FORMERLY PROFESSOR OF CANON LAW, AUTHOR OF " NOTES ON THE SECOND PLENARY COUNCIL 

OF BALTIMORE;" OF "COUNTER-POINTS IN CANON LAW; " "THE NEW PROCEDURE IN 

CRIMINAL AND DISCIPLINARY CAUSES OF ECCLESIASTICS," ETC., ETC. 



VOL. III. 
ECCLESIASTICAL PUNISHMENTS. 

SECOND, REVISED EDITION. 



NEW YORK, CINCINNATI, AND CHICAGO : 

BENZIGEE BEOTHEES, 

PRINTERS TO THE HOLY APOSTOLIC SEE. 



H. GABRIELS, S.T.D., 

Censor Deputatus. 



* MICHAEL AUGUSTINUS, 

Archiepiscopus Neo- Eboracensis. 



DATUM NEO-EBORACI, 

DIE 12 APRILIS, 1888. 



DEC 2 3 1954 



Copyright, 1888, by BENZIGER BROTHERS. 



PREFACE. 



After fifteen years of ceaseless toil and unwearied study, 
we have at last finished these Elements of Ecclesiastical Law. 
The first volume was published in 1877; the second in 1882; 
the third and last is now given to the public. 

This third volume deals with a subject which grates 
harshly on the ear of the reader. Punishments are never 
agreeable, either to the superior imposing, or to the subject 
receiving them. Yet they are coeval with fallen man, and 
will exist as long as man. Hence the necessity of a full and 
clear knowledge of them. By this knowledge, the superior 
will be enabled to impose them wisely, justly, moderately ; 
the inferior, to safeguard and protect the rights given him 
by the law of the Church. 

The law of the Church has determined the various kinds 
of punishments which can be inflicted. They are of two 
kinds: preventive and repressive. The latter are sub 
divided into punitive and reformative. The chief repres 
sive punitive remedies are: Penal transfers, removals 
from office, disqualifications for offices and orders, and 
infamy. The principal repressive reformative penalties 
are : Suspensions, excommunications, and interdicts. 



4 Prejace. 

The law of the Church has also defined (a), what actions 
are punishable ; (), what specific penalty is annexed to a 
punishable action ; (V), how the superior proceeds in impos 
ing the remedy ; (d\ how the inferior can protect himself 
against unmerited punishment. 

All these points are fully and accurately explained in the 
present volume. They are treated with special reference 
to our own times, and to this country, to England, Ireland, 
and to other English-speaking countries. Hence we have 
taken into full account the latest Instruction of the S. C. de 
Prop. Fide, Cum Magnopere, issued in 1884, and the Third 
Plenary Council of Baltimore. For the same reason, we 
explain the law as it is now, not as it existed formerly. 

We have spared no pains to make the book perfectly 
accurate and reliable. Consequently we have taken nearly 
all our quotations from the originals, not at second hand. 

We avail ourselves of this occasion to express our heart 
felt gratitude for the kind, indulgent, and generous patron 
age bestowed upon our works by the clergy of this and 
other English-speaking countries. 

PATERSON, \ 

Feast of St. Monica, > 

May 4, 1888. ) 



PREFACE TO THE SECOND EDITION. 



The present volume, like the first and second, met with a 
welcome reception. The Dublin Review and other foremost 
journals bestowed upon it the most flattering encomiums. 
The present edition has been greatly improved. A large 
number of printers typographical mistakes have been cor 
rected. Many other changes have been made. Some of 
them are intended to make expressions which were some 
what obscure clear and unmistakable. Others affect the 
matter itself. In this manner we have sought to make the 
present edition as accurate and satisfactory as possible. 

PATERSON, April 22, 1889. 



BOOK III. 

ECCLESIASTICAL PUNISHMENTS. 



1656. We shall divide this book into four Parts : the first 
will treat of punishments in general ; the second, of preven 
tive or paternal remedies ; the third, of repressive punish 
ments which are called vindicatory ; the fourth, of repres 
sive punishments which are termed correctional. 

PART I. 

ECCLESIASTICAL PUNISHMENTS IN GENERAL. 

1657. In this part we shall explain the true nature of pun 
ishments ; what actions are deserving of them ; their aim ; 
by whom they can be imposed, etc. 

CHAPTER I. 

TRUE IDEA OF ECCLESIASTICAL PUNISHMENTS. 

ART. I. 
Has the Church a Right to Inflict Punishments ? 

1658. As we have already shown, the Church is a Sov 
ereign State, that is, a perfect and supreme society, estab 
lished by our Lord for the purpose of leading men to 
heaven. * We say, a society ; now what is a society ? Speak 
ing in general, it is a number of persons associated together, 

1 Supra, vol. ii., n. 702 sq. ; Tarqu., n. 4, 41. 



8 True Idea of Ecclesiastical Punishments, 

in order to attain, by united efforts, some common end. 
We say, perfect ; because she is complete of herself, and 
therefore has within her own bosom all the means sufficient 
to enable her to attain her end. * We say, supreme, because 
she is subject to no other society on earth. Like every 
society, the Church is an external organization. For she 
is composed of human beings, who have a body as well as a 
soul. She is, in fact, by the will of her divine Founder, a 
community, an association of men, governed by men. 2 

1659. Like every external organization, the Church must 
be governed by laws and regulations that will enable her 
to fulfil her mission and attain her end. The aim and end of 
the Church is the worship of God and the salvation of souls. 
Any action or omission, therefore, on the part of her mem 
bers, which hinders her from carrying out her mission or 
reaching her end, and, consequently, whatever contravenes 
the regulations made by her concerning the worship of God 
and the sanctification of her children, is punishable by her. 
For God, having given her a mission, also gave her the 
means or the power to fulfil it. Hence she can establish, in 
fact has established, laws, and regulations, obligatory on 
her members. If the members violate those laws, they not 
only sin against God, but they offend also against the order, 
discipline, laws, or regulations established by the Church. 

1660. That the Church can punish her members for such 
infractions of her laws, is evident from her very character 
as a society, and is, moreover, apparent from divine reve 
lation, as we have already shown. 3 St. Paul the Apostle 
writes to the Corinthians : " And having in readiness to 
avenge all disobedience." 4 We have also seen that the 
Church can inflict temporal and physical as well as spiritual 
punishments. 

1 Tarqu., n. 6. 2 Soglia, vol. i., p. 137. 

3 Supra, n. 705-710. 4 II. Cor., x. 6. 



True Idea of Ecclesiastical Punishments. 9 

ART. II. 
WJiat is a Punishment ? 

1 66 1. What then is meant by a punishment? Speaking in 
general, a punishment (pcena) is an evil, a pain or a suffering, 
whether of the body or the soul, inflicted for crime. 1 When 
a person transgresses a law, he always does so in order to 
satisfy his disorderly passion, and procure for himself some 
unlawful enjoyment. The lawgiver punishes him for his 
disobedience, by depriving him of some lawful gratification, 
or by making him suffer some pain, either in his soul, or in 
his body, and thus the illicit pleasure is atoned for and 
expiated by the privation and suffering. 2 From this it will 
be seen that punishment and guilt are correlatives. There 
can be no punishment Avhere there is no crime ; otherwise 
the punishment would be unjust and barbarous. 3 " Sine 
culpa " says the law of the Church " non est aliquis pu- 
niendus." 4 Now there is no guilt, no crime, where there is 
no premeditated, intentional violation of the law. Hence 
there must be, not simply a material, but also a formal 
crime. 

1662. Punishments are either secular or ecclesiastical, 
according as they are established by the civil or ecclesias 
tical power. Ecclesiastical or canonical punishments, of 
which alone we here speak, are the pains, sufferings, or 
privations, inflicted by ecclesiastical authority, in the man 
ner prescribed by the sacred canons, upon Christians who 
have transgressed the laws of the Church, and have thus 
committed a crime, in order that the offender may be made 
to feel the gravity of the wrong done by him, be brought 

1 Munchen, 1. c., vol. ii., p. 8. 2 Stremler, 1. c., p. 3. 3 Ib., p. 4. 

4 Reg. jur. 23. in 6 ; Reiff., 1. c., 1. 5., t. 37., n. 2. Natural law itself teaches, that, 
4. as those who observe the law should be rewarded, so those who break it should be 

punished. 



i o True Idea of Ecclesiastical Punishments. 

back to the path of duty, prevented from repeating the 
crime, and also that others may be deterred from following 
his bad example. * The chief object of the ecclesiastical 
punishments, in the strict sense, is to cause the laws of the 
Church to be respected and observed. 2 Hence canonists 
very properly say that canonical punishments are estab 
lished for the purpose of maintaining the external order or 
public discipline of the Church. 

ART. III. 
What arc Crimes ? 

1663. What is meant by a crime in the canonical sense of the 
term? We have just said that ecclesiastical punishments 
are inflicted for crimes, not sins. Let us explain the differ 
ence between the two. By a crime (crimen, delictum), in its 
legal or canonical acceptation, is not meant every sin, but 
only certain grave sins, to which the law of the Church has 
attached a punishment. Thus St. Augustine says : " Apos- 
tolus Paulus, quando elegit ordinandos . . . non ait : Si quis 
sine peccato est (hoc enim si diceret, omnis homo repro- 
baretur, nullus ordinaretur), sed ait : Si quis sine crimine 
est/ sicut est homicidium, adulterium . . . Crimen autem est 
peccatum grave, accusatione et damnatione dignissimum" 3 St. 
Thomas likewise writes : " Aliud est crimen, et aliud pecca- 
tum. Peccatum dicitur quodcumque sive magnum, sive 
parvum, sive occultum, crimen autem magnum et infame." 4 

1664. A crime, therefore, is an unlawful act or omission 
punishable in the external forum of the Church. 6 Now, as 
we have seen, the Church, in her external forum, punishes 
only those unlawful acts or sins, which not merely offend 
God, but also violate the rules, regulations, and laws en- 

1 Phillips, Lehrb., 180., p. 375. 2 Cavagnis, vol. i., pp. 85, 93, 97. 

3 Can. Apost. I., dist. So. 4 Lect. 2, Com. Ep. ad Tim. 

5 Pellegr., P. 4, Sect, vii., n. i. 



True Idea of Ecclesiastical Punishments. 1 1 

acted by her, and which, therefore, are not only offensive 
to God, but also detrimental to the public discipline of the 
Church. x A sin, on the other hand, is any action or omis 
sion, which is contrary to law, divine or natural, but which 
does not redound directly to the detriment of the Church. 2 
Consequently a sin simply disturbs the moral order, while 
a crime also violates the social order, that is, the external re 
gime or public discipline of the Church. * Whether there 
are actions that may be punished as crimes, not because they 
are transgressions of an ecclesiastical law and disturb the 
social or external order of the Church, that is, ecclesiastical 
discipline, but purely as sins or offences against God and as 
violating the moral order, we shall not here undertake to 
show. The Church can, it is true, treat grave sins as 
crimes ; but even she does so only when the sin takes the 
form of an action which is also injurious to others, and thus 
dangerous to the common good of the faithful. 4 



1 Soglia, vol. ii., p. 531. - Stremler, 1. c., p. 65. 

Cavagnis, vol. i., p. 90; Tarqu., n. 25, p. 17. * Munchen, 1. c., vol. ii., p. 24. 



CHAPTER II. 

THE VARIOUS KINDS OF ECCLESIASTICAL PUNISHMENTS. 

ART. I. 
Penances. 

1665. Taken in their broadest sense, ecclesiastical punish 
ments are divided into punishments of the forum internum 
and punishments of the forum extermim. .The former are 
imposed in the internal forum, or in the tribunal of penance, 
and are called penances (pcenit entice) rather than punish 
ments (pcencz). * The latter are inflicted in the external or 
judicial tribunal of the Church. Penances are voluntarily 
received and performed, while punishments are inflicted 
upon those who may be unwilling to accept them. For a 
person who commits a crime can be punished therefor, 
whether he consents or not to the punishment. 2 Again, 
penances are imposed, not only for crimes, but also for mere 
sins, and that even though purely internal ; punishments 
only for crimes which are external, and which violate, not 
merely a divine law, but also an ecclesiastical, that is, not 
only the moral order, but also the social or disciplinary 
order of the Church. In the present volume, we speak of 
punishments only, not of penances. 

ART. II. 
Punishments. 

1666. The punishments of the external forum are divided 
(a) into preventive and repressive ; (b) reforming and vin- 

1 Reiff., 1. 5, t. 37, n. 17. 
2 Cavagnis, Insti. Jur. Publ. Eccl., vol. i., p. 99. Romce, 1882. 



Various kinds of Ecclesiastical Punishments. i j 

dicatory ; (c] ordinary and extraordinary ; (d} fcrcndce and 
latce sententice ; (e) temporal and spiritual. We shall now 
briefly explain each of these divisions. 

. i . Preventive and Repressive Punishments. 

1667. All ecclesiastical punishments are either preventive 
or repressive. Thus the instruction Cum Magnopere of the S. 
Congr. de Prop. Fide, speaking of canonical punishments, 
says: " Haec vero remedia, alia pr&ventiva sunt, alia repres- 
siva" The preventive punishments or remedies are those 
which aim chiefly at preventing the fall of those persons 
who are already on the inclined plane of evil. Thus the 
above instruction (iti) says : " Ilia (prasventiva remedia) 
quidem ad praepedienda mala, scandalorum stimulos amoven- 
dos, voluntarias occasiones et causas ad delinquendum prox- 
imas vitandas ordinantur." The chief preventive remedies 
are spiritual retreats, canonical warnings, and precepts. 
Repressive punishments are those which aim at bringing- 
back the offender who has fallen into crime to the path of 
duty, and at wiping out the consequences of his guilt. 
Thus the Instruction Cum Magnopere, Art. II., decrees: 
" Hsec vero (remedia repressiva) eum in finem constitute 
sunt, ut delinquentes ad bonam frugem revocentur, ac 
culparum consectaria de medio tollantur." 

. 2. Reforming and Vindicative Punishments. 

1668. Repressive punishments are subdivided into those 
which primarily have in view the good of the offender, and, 
therefore, aim principally at reforming him or bringing him 
back to the path of duty ; and those which have for their 
chief object the common good of the faithful, and therefore 
aim directly at making the guilty party suffer and atone for 
his guilt, in order that others may be deterred from follow 
ing his bad example, and that thus the social order of the 



14 Various kinds of Ecclesiastical Punishments. 

Church, that is her discipline and law, may be upheld. 
The first are called correctional punishments (pcence medi- 
finalcs, censures) ; the second, punitive, or punishments proper 
-and in the strict sense of the term (pcence, pocnce vindicative?). 

1669. This distinction is also clearly indicated in the an 
swer of the S. C. de Prop. Fide to questions of our American 
Bishops relative to the Instruction of July 20, 1878, on Com 
missions of Investigation. Here are the words of the Prop 
aganda : " Instructio diei 20 Julii, 1878, lata est de casibus, 
in quibus ecclesiastica pcena sen censura sit infligenda." 
Here the words pcena and censura are carefully distinguished 
from one another. By pcena the Sacred Congregation means 
vindicatory punishments : by censura, correctional. 

1670. In drawing the distinction between the end and aim 
of these two classes of punishments, we must guard against 
an erroneous impression. It would be a mistake to suppose, 
that, in inflicting punishments proper or vindicatory, the 
Church excludes altogether the reformation of the delinquent; 
or that, vice versa, in imposing correctional punishments, she 
does not aim at terrifying others from crime and maintain 
ing respect for her laws and discipline. In all her punish 
ments, whether medicinal or punitory, the Church always 
has a twofold object in view : first, to cause the offender to 
repent and amend ; second, to deter others from crimes. 

1671. In other words, she ahvays aims both at the good 
of the offending individual and at the common good of the 
Church. All ecclesiastical punishments therefore, both puni 
tive and correctional, have a twofold object, viz., (a) the 
amendment of the offender, (ft) and the atonement or retri 
bution for, and consequent repression of, the crime, and an 
example or warning to others. * The difference, then, in the 
aim of these two kinds of punishment is this : In correctional 
punishments, the amendment of the culprit is the preponder- 

1 Arg. Cap. Novit ille 13 (II. i); Salz., vol. 4, p. 81. 



Various kinds of Ecclesiastical Punishments. 1 5 

at ing motive, and the atonement for the crime the secondary ; 
whereas in vindicative punishments the reformation of the 
offender is but the secondary consideration, and the retribution 
or atonement for the crime the chief and primary object. 
This distinction between medicinal and vindicatory punish 
ments is made by all canonists, and is of the utmost impor 
tance and must be carefully borne in mind. 2 

1672. Against this division it may perhaps be objected 
that the Instruction June n, 1880, of the S. C. EE. et RR., 
as also the Instruction Cum Magnopere, issued by the S. C. 
de Prop. Fide, in 1884, for the United States, has modified 
the discipline of the Church, and made the above division 
untenable, at the present day at least, in those countries 
where the above Instructions obtain. For according to 
these Instructions all repressive punishments whatever, and 
consequently not only those which are usually termed medi 
cinal^ but also those which are punitive, appear to aim 
equally, nay primarily, at the reformation or correction of the 
offender, and only secondarily at the atonement for the crime. 
Thus article II. of these Instructions says : " Hasc vero (re- 
media repressi va) eum in finem constituta sunt, ut delin- 
quentes ad bonam frugem rcvocentur, ac culparum consectaria 
de medio tollantur." 

1673. We answer: We do not think the objection will 
hold. The article quoted from the Instruction does not ap 
pear to warrant the inference that all repressive punish 
ments are primarily correctional. Unless we are mistaken, 
it means simply that all repressive punishments whether 
called vindicatory or correctional have more or less both 
ends in view : namely (a) to cause the delinquent to amend ; 

1 Schulte, K. K.. vol. 2., p. 387. 

- See Reiff., 1. 5., t. 39., n. 5; Schmalzg., 1. 5, t. 37, n. 4, 5 ; idem, 1. 5, t. 39, 
n. i, 2, 5 ; Leuren, For. Eccl., 1. 5, t. 37, q. 492, n. 4; idem, 1. 5, t. 39, q. 550, n. 
II ; Santi, Prsel., 1. 5, t. 37, n. i, 2 ; idem, 1. 5. t. 39, n..i ; Miinchen, vol. 2, pp. 
119, 176; Prsel. S. Sulp. vol. 3, pp. 224, 247; Sanguined, Tnst., p. 459. 



1 6 Various kinds of Ecclesiastical Punishments. 

(b) to deter others from crime, (c) and thus to preserve so 
cial order, and cause the law to be observed and respected. 
It is true that the end of the Church is to save souls, to go 
after and reclaim the lost sheep. She never loses sight of 
this, even when she inflicts what are called vindicatory 
punishments. But from this it does not follow that in some 
of her punishments she cannot aim principally at the atone 
ment for the crime and the maintenance of her laws. * 

1674. Correctional punishments are inflicted upon those 
who are guilty of crime and are contumacious or incorrig 
ible at the time, but of whose amendment there is yet some 
hope. They are to be preceded not only by a trial, but also 
by the canonical admonitions and the precept, as we shall 
see. For their chief aim is to amend the delinquent. 
Hence, when the superior finds that a subject has committed 
an offence which is deserving of a reforming or medicinal 
punishment, he shall first warn him ; and should the canoni 
cal admonitions prove of no avail, he shall give him the 
precept. When even the precept fails to recall the delin 
quent to the path of duty, he can proceed w r ith the trial, 
preparatory to inflicting censure. 

1675. Vindicative punishments are imposed upon those 
offenders, of whose conversion scarcely any hope is left, or 
who are convicted of atrocious or heinous crimes, which it 
is necessary to punish in order to deter others from similar 
crimes, or to avert or to repair scandal. 2 Yet even these 
punishments aim also at the reformation of the offender, 
though only secondarily. The Church never excludes this 
aim altogether from any of her punishments. 8 For her mis 
sion or end is to save souls. Hence, when the Superior finds 

1 Sanguineti, Inst, p. 459, says : " Cum igitur Ecclesiae finis sit salus animarum, 
etiam in poenis materialibus, quibus plectit delinquentes, id potissimum curat, ut eo- 
rum salutem obtineat. Hinc poenae ecclesiastics, etiam materiales, sunt medicinales, 
saltern quoad fieri potest." 

- Pracl. $ Su p., vol. 3, p. 224. 3 Sanguineti, Inst., p. 459. 



Various kinds of Ecclesiastical Punishments. 1 7 

that one of his ecclesiastics is guilty of an offence which is 
deserving of a vindicative punishment v. g., dismissal from 
parish or office he will, even then, as a rule, laudably give 
the delinquent repeated admonitions and the precept ; and 
only when these prove ineffectual will he proceed to the 
trial, preparatory to inflicting punishment. 

1676. We say, laudably ; for he is not obliged, as in the case 
of correctional punishments, to give the warnings and the 
precept, but may, absolutely speaking, proceed at once to a 
trial and, upon conviction, impose the penalty. We say also, 
as a rule; for sometimes v. g., where the offence is very hei 
nous and notorious the Superior may find it necessary or 
opportune to dispense with the admonitions and the precept. 
This whole teaching is beautifully laid down by the 
Third Plenary Council of Baltimore, n. 300, 309, to which we 
refer the reader. 



ART. III. 

Is the procedure for inflicting reformative punishments dif 
ferent from that for imposing vindicative ? Meaning of causa 
criminalis and causa disciplinaris. 

1677. From the division of ecclesiastical punishments 
into punitive and correctional, some canonists take oc 
casion to divide ecclesiastical proceedings and causes into 
disciplinary (causa disciplinaris}, and criminal (causa crimin- 
alis), according as the punishment to be inflicted is correc 
tional or punitive. Here we may be allowed to digress 
somewhat from our subject, in order to explain these terms 
causa disciplinaris and causa criminalis especially as these 
two phrases occur in the titles or headings of all the recent 
Instructions of the Holy See which treat of ecclesiastical 
trials. For proof of this, see the Instruction of the Propa 
ganda, July 20, 1878, on Commissions of Investigation; the 



1 8 Various kinds of Ecclesiastical Punishments. 

Instruction of the S. C. EE. et RR. of June n, 1880; the 
Instruction Cum Magnopcre, 1884. The heading of the latter 
Instruction is : " Instructio S. C. de Prop. Fide de modo ser- 
vando in cognoscendis et denniendis causis criminalibus et 
disciplinaribus clericorum in Fcederatis Statibus Americae 
Septentrionalis." 

1678. What then is the meaning of these two phrases? 
According to some canonists, who divide ecclesiastical pun 
ishments into correctional and vindicatory, a disciplinary pro 
ceeding, trial, or cause (causa disciplinaris) is that where med 
icinal punishments are imposed. By medicinal remedies, 
they mean not merely censures, but also other remedies 
having the amendment of the offender in view, v. g., assign 
ment to a religious house for a time. * A criminal trial or 
cause (causa criminalis), according to them, is one where 
vindicatory punishments are imposed. 2 This division of 
trials is based on the fact that the proceedings which take 
place prior to the infliction of vindicatory punishments dif 
fer, so far as the canonical warnings and the precept are 
concerned, from those which precede the imposing of cor 
rectional punishments. Thus, in the infliction of the latter, 
not only a previous trial is required, but moreover a pre 
vious canonical warning and the precept ; while in the im 
posing of punitive remedies the trial alone is, absolutely 
speaking, requisite. The trial proper is the same in both 
cases. The difference lies in this, that for vindicatory pun 
ishments the trial is, strictly speaking, sufficient ; for cor 
rectional, the previous canonical warning and the precept 
are necessary besides the trial. 

1679. We say, absolutely speaking. For the authors in 
question observe that the line must not be too strictly 
drawn between causce disciplinarcs and causes criminates. In 
fact, they say, and justly, that all ecclesiastical punishments 

1 Miinchen, 1. c., vol. 2, p. 7, n. 8; p. 8, n. 9. 2 Droste, 1. c , pp. 2, 3. 



Various kinds of Ecclesiastical Punishments. 19 

have always more or less the amendment of the delinquent 
in view ; that, consequently, it is, as a rule, laudable, though 
perhaps not strictly obligatory, to give not merely the trial, 
but also the canonical warnings and the precept, prior to 
imposing even vindicatory punishments. Hence, they say, 
practically speaking, the proceedings by which vindicative 
punishments are inflicted are, in most cases, the same as 
those by which reformative or medicinal ones are imposed. 
Thus Droste, as edited by Messmer, writes : " Ecclesiastical 
punishments are by custom divided into corrective and 
vindicative. . . According to this, we may distinguish be 
tween disciplinary and criminal proceedings. . . However, 
the terms disciplinary punishment and strictly called punish 
ment, as well as disciplinary and criminal procedure, are 
often interchanged ; the more, as the boundary line between 
them cannot be easily drawn in practice." 

1680. These writers say again: "We have already re 
marked above (n. 3) that the division of punishments into 
corrective ones, whose direct object is the amendment and 
reformation of the delinquent, and vindicative ones, whose 
direct object is mainly the restoration of the disturbed order 
and retribution, is in most cases rat her logical than real. For 
all punishments effect more or less in the offender a change 
for the better. . . From this it will be seen that a strict di 
vision of the procedure into disciplinary, i. e., such as applies 
to corrective or reformative means, and criminal, i. e., such 
as imposes a penalty for the committed offence, is not prac 
ticable." 2 

1 68 1. The above explanation of causce criminates and causa 
disciplinarcs appears to be also in harmony with the follow 
ing authentic declaration given by the S. C. de P. F. in an 
swer to questions proposed by Bishops of the United States 
in regard to the Instruction Quamvis of July 20, 1878: " In- 

1 Droste Messmer, p. 17. 2 Ib., pp. 78-79. 



2O Various kinds of Ecclesiastical Punishments. 

structio diei 20 Julii 1878 lata est de casibus, in quibus ec- 
clesiastica poena seu censura sit infligenda, aut gravi dis- 
ciplinari coercitioni sit locus." * Here then the Holy See 
declares that the trial prescribed in the Instruction Quamvis 
shall take place in all cases where (a) a vindicatory (pcena) 
or (&) correctional punishment (censura) is to be inflicted, 
or (c) where there is room for a grave disciplinary correc 
tion. Now the above Instruction Quamvis, as is expressly 
stated in its title, prescribed the trial or mode of procedure 
which had to be followed by the Bishops of the United 
States " in cognoscendis et definiendis causis criminalibus 
et disciplinaribus clericorum." Consequently the Holy See 
would appear to mean by causes criminalcs, causes where 
vindicatory punishment is to be inflicted, and by causes dis- 
ciplinarcs those where correctional or reformative measures 
are imposed. 

1682. A second explanation of the above clauses is, that 
by the phrase causce criminates are meant causes, proceed 
ings, or trials where transgressions of the moral law, as 
punishable in the ecclesiastical external forum, v. g., drunk 
enness, concubinage are punished ; by the phrase causes 
disciplinares those where an infraction of a purely disci 
plinary law of the Church v. g., the non-recital of the divine 
office is chastised, whether the chastisement consist in 
a reformative or in a vindicatory punishment. Perhaps a 
better insight into this solution will be gained by recalling 
the division of the sacred canons into, (a) dogmatic, (b) moral, 
(c) and disciplinary. 2 The dogmatic canons relate to matters 
to be believed ; the moral are those which define the rule of 
action in matters which are intrinsically good or bad, such 
as false oaths, adultery, theft. The disciplinary canons are 
those which refer directly to the external discipline of the 
Church, that is, to the order, rules, and regulations made by 

1 Our Elements, vol. ii., p. 422. Second edition, 1888. 2 Supra, vol. i., n. 137. 



Varioiis kinds of Ecclesiastical Punishments. 2 1 

her for her government as an external society. Such are 
the canons which determine the mode and time of fulfilling 
the divine and natural precepts, whenever this is not done 
by the divine or natural law itself ; such are, moreover, the 
rules which regulate the observance of Sunday, or regard 
the Paschal Precept, the appointment to ecclesiastical offices, 
the administration of the sacraments or other acts of divine 
worship, the recitation of the divine office, the celibacy of 
the clergy, etc. 

1683. Whatever may be said concerning this explanation, 
it should be observed here that the Church never inflicts 
punishments for acts which are mere sins, i. e., which of 
fend God or the moral order, but do not at the same time 
redound to the detriment of her external polity ; nor, vice 
versa, for acts which offend merely against her external social 
order, but do not in any sense contravene the moral order 
or law. 

1684. A third opinion is that causce disciplinares mean 
causes and proceedings where a preventive remedy is im 
posed ; causa criminates those where repressive punishments, 
vindicatory or correctional, are inflicted. Finally, a fourth 
opinion holds that by causes disciplinares are understood 
causes and proceedings where the violation of the precept 
is punished ; by causes criminates those where reatus communes 
and the violatio legum ecclesice are chastised. * See our New 
Procedure, n. 29, 30. 

ART. IV. 
Ordinary and Extraordinary or Discretionary Punishments. 

1685. Sometimes the law itself, that is, the Sacred Canons 
or lawful custom, determine the specific punishment for a 
certain crime. Thus the can. Si quis s iiadente diabolo, 29, 

J Cf. Tnstr. Cum Magnoperc, art. x. 



22 Various kinds of Ecclesiastical Punishments. 

Caus. 17, O. 4, enacts, that, if any person maliciously mal 
treats an ecclesiastic, he shall incur excommunication. 
Here is a penal law having a determinate punishment or 
sanction annexed to its violation. Punishments of this kind 
are called ordinary (pcena ordinarid). 1 

1686. At other times the law or custom enacts, indeed, 
that a certain action or offence is punishable, and therefore 
it has a penal sanction annexed, .though only a general one ; 
yet it does not determine what particular punishment is to 
be inflicted, but, either implicitly or explicitly, leaves the 
ecclesiastical judge free to inflict that punishment which he 
may deem proper and just, considering the quality of the 
crime and the circumstances of the case. These punish 
ments are named discretionary (police arbitrarice, poznce extra- 
ordinaries). It should be observed, however, that in 
inflicting extraordinary or discretionary punishments the 
judge cannot proceed from arbitrary motives, but must be 
guided by right reason. His will must be the will of a good 
man (boni viri arbitriuni] and not of a despot. In other 
words, he is obliged to impose such punishments as will, 
seem equitable and just in the estimation of good and pru 
dent persons, considering the quality of the crime and the 
circumstances of the case. 

1687. However, while in such a case the judge is allowed 
a certain discretion, he can, in no case, as was seen, inflict 
punishment for actions or offences which are not expressly 
designated in law as punishable. Consequently the Instr. of 
the S. C. de P. F. Ciun Magnopere, issued in 1884, f r the 
United States, distinctly says, that, when the Ordinary or 
other ecclesiastical judge pronounces sentence of condem 
nation, he shall expressly mention the canonical sanction 
i. e., the law of the Church which authorizes him to inflict 
the punishment in the case. The words of the Instruction 

1 Reiff., 1. 5, t. 37, n. 5. 
2 Arg. 1. 6 et 1. 76, ff. Pro Socio (xvii. 2); Ferraris, v. Poenn, art. i., n. 46. 



Various kinds of Ecclesiastical Punishments. 23 

are : " Prasstituta die. . . sententia pronuntiatur. . . cxprcssa 
mentione facta, si damnationi sit locus, sanctionis canoniccz, 
quas contra imputatum applicatur." (Art. XXXIV.) 

ART. V. 
Punishments " ferendce and late sent entice" 

1688. Ordinary punishments are enacted by the law, 
either (a) in such a manner as to be incurred ipso jure or 
ipso facto, that is by the very fact of the commission of the 
crime ; (b) or only after the judge has pronounced condem 
natory sentence in the manner prescribed by the Sacred 
Canons. 1 The former are styled punishments latcz sentential / 
the latter ferendce sententia. 

ART. VI. 
Temporal and Spiritual Punishments. 

1689. Finally, it should be observed that the punishments 
of the Church may produce not only spiritual, but also 
temporal effects, and accordingly they may be either tem 
poral or spiritual. The temporal punishments of the Church 
are those which chiefly affect the temporal or worldly 
interests of the delinquent. They may be such as more 
directly affect (a) the soul, such as the loss of good name ; 
or the (b) body, such as whipping, exile, detention in a 
monastery ; (c) or also the property or possessions of the 
offender, as pecuniary fines. Spiritual punishments are those 
which deprive the culprit, either temporarily or perma 
nently of a spiritual office or privilege, or of the exercise of 
sacred Orders, such as dismissal from benefice or office, 
privation of ecclesiastical burial, of active and passive vote 
in ecclesiastical elections, etc. 2 However, as Stremler 3 well 

1 Schmalzg., 1. 5, t. 37, n. n. 2 Schmalzg., I.e., n. 14. 3 L. c., p. 9. 



24 Various kinds of Ecclesiastical Punishments. 

remarks, this distinction between temporal and spiritual 
punishments must not be so strictly drawn as not to allow 
in one also some of the elements of the other. Thus dis 
missal from ecclesiastical benefice, office or dignity, (with 
us in the United States, dismissal of a rector) is a spiritual 
punishment ; yet it brings also with it a temporal punish 
ment, since it causes the loss of the salary or income, and 
dishonor. The distinction, therefore, is based simply on 
the predominant or principal effect of each of the two kinds 
of punishment. 

1 Sanguineti, 1. c., p. 461. 



CHAPTER III. 

WHEN AND BY WHOM ECCLESIASTICAL PUNISHMENTS CAN BE 

INFLICTED. 

ART. I. 
For what unlawful acts can a Person be Punished? 

1690. Q. For what cause can ecclesiastical repressive pun 
ishments be inflicted ? 

A. First, Canonical Punishments, whether vindicatory or 
correctional, can be inflicted only for crime, and for no other 
cause, as we have already seen. * Hence no person can be 
punished, save when he has committed a crime. This truth 
is founded in the very law of nature, and is also repeatedly 
and solemnly inculcated by the law of the Church, as a 
fundamental and essential condition of all punishment. 
Thus the sacred canons say : " Rem, quas culpa caret, in 
damnum vocari non convenit." 2 The Roman law expresses 
the same principle thus : " Sancimus ibi esse pcenam, ubi est 
noxa." * 

1691. Now, as we have already shown, a crime, in the 
canonical sense of the term, is an act or omission contrary 
to the law of the Church, and imputable to its author. 4 We 
say imputable ; now, where an act is not wilful, that is, 
where it is done without due knowledge or free will, it is 
not a human act, is not imputable to its author, and there- 
lore not punishable. Hence a violation of a law which 
proceeds from a want of knowledge, from grave fear, or 

1 Supra, n. 1569. 2 Cap. 2, de Const. (I. 2.) 

3 L. 22 C. de poenis. 4 Tarqu., 1. c., n. 25. 



26 When can Ecclesiastical Punishments be Inflicted. 

from violence is but a material, not a formal, violation of the 
law, and therefore no crime. But of this later on. 

1692. Second, The crime must be external. For it is 
manifest that internal acts or mere thoughts, and conse 
quently offences which are committed merely in thought, 
cannot be proven externally and therefore lie beyond the 
pale of the Church s external tribunal. Hence the Roman 
law, * as adopted by the Church says : " Cogitationis poenam 
nemo patitur." And the Glossa, commenting on the canon 
Erubescant 11, dist. 32, writes : " Ex hoc patet, quod ecclesia 
non judicat de occultis." * 

1693. Third, The crime must be personally committed. In 
other words, a person can be punished only for a crime 
which he has himself committed, and not for a crime which 
another person has perpetrated. Hence the rule : " Non 
debet aliquis alterius odio praegravari." 4 Our natural sense 
of justice tells us that the punishment should not extend 
beyond the criminal himself to a third party who is innocent. 
Thus Pope Boniface VIII. expressly enacts that excommu 
nication should not be inflicted upon a whole body corpor 
ate or community, but only on such members of said body 
as have been duly convicted of crime, lest, as he adds, the 
innocent might suffer Avith the guilty. His words are: 
4< In universitatem vel collegium proferri sententiam excom- 
municationis penitus prohibemus. . . Sed in illos dumtaxat 
de collegio vel universitate, quos culpabiles esse constiterit, 
promulgetur . . . volentes animarum periculum vitare, quod 
exinde sequi posset, cum nonnunquam contingeret innoxios 
hujusmodi sententia irretiri." As to the sense in which 
an innocent person may sometimes be affected by or suffer 
(not punishments in the proper sense) through the crime of 
a third party, see Kober, Suspensions, p. 51. 

1 L. 18 ft. de poenis, (48, 19). 2 Can. 14, dist. I. de poenit. 

3 Cf. Miinchen, 1. c., vol. 2, p. 46; Kober, Kirchenbann, p. 130. 
Reg. 22 in 6. * Cap. 5, in 6 (V. II.) 6 Reiff., in reg. jur., reg. 22-23. 



When can Ecclesiastical Punishments be Inflicted f 27 

1694. Fourth, the crime must be mortal or grievous. Not 
only the law of the Church, but the very law of nature tells 
us that there should be a just proportion between the crime 
and its punishment, and that therefore, if the punishment be 
severe, the crime must also be grievous. Thus Pope Bene 
dict XIV., 1 speaking of censures, writes : " If, according 
to the opinion of all canonists, a grievous and heinous crime 
is required, in order to authorize the Superior to inflict a 
censure which is merely ferendae sententiae, it is manifest that 
a far greater and more execrable crime is necessary in order 
that a person may be punished with a censure latac senten- 
tiae" What the Pope here says of censures, applies equally 
to all the other ecclesiastical punishments. For all the pun 
ishments established by the sacred canons, whether they are 
punitive or correctional, are heavy and severe punishments, 
and therefore cannot be inflicted for light offences. 2 Be 
sides, as we shall see, no ecclesiastical punishments, if we 
except sentences ex inf. conscientia, can be imposed save by 
a canonical trial. Now it were ridiculous to have recourse 
to judicial proceedings for offences which are not of a 
very grave character. 3 

1695. Fifth, the crime must be, moreover, complete. 
Hence, for instance, a person who strikes another person, 
with intent to kill him, does not incur the penalty of murder, 
if he merely wounded him, or broke his arm, but did not 
really kill him. Consequently also the sole attempt to commit 
a crime, or the mere co-operation, whether by advice, com < 
mancl, or otherwise, cannot be punished with the punistu 
ment decreed by the law for the crime itself, unless the 
law expressly states that not only those who commit the 
crime, but also all those who give aid, counsel, etc., or who 
attempt to commit the crime, shall incur the same penalty, 
as though they had perpetrated the crime itself. The rea- 

1 De Syn., 1. x., c. I, n. 5. * Prael. S. Sulpit., vol. 3, n. 758. 

3 Craisson, Man., n. 6325. 



28 IV ken can Ecclesiastical Punishments be Inflicted ? 

son of this principle is, that penal laws must be strictly 
construed. 

1696. Sixth, it must be proved juridically, that is, by a 
trial, as prescribed by the sacred canons. This is founded 
in the very law of nature, and is repeatedly inculcated by 
the sacred canons in the most emphatic and solemn manner, 
as we have already shown. * In the United States no less 
than elsewhere, the crime must be proven and proved juri 
dically > that is by trial as conducted either according to the 
latest Instruction Cum Magnopere of the Propaganda, issued 
in April 1884, or before the commission of Investigation, 
where it still exists by Papal dispensation, in the manner 
pointed out by article XII. of the Instruction Cum Magno 
pere. The only exception to this rule is that introduced by 
the Council of Trent, which in its I4th session, chapter I. 
on Reformation, authorizes Bishops, as we have already 
seen, 2 to inflict suspension in certain extraordinary cases, 
ex informata conscientia, i. c., without any previous trial. 3 

1697. Besides, in the case of repressive punishments which 
are correctional or reformative, it is necessary that, before the 
trial is begun, the canonical warnings and the precept, as 
laid down in the Instruction Cum Magnopere, shall be given 
as we have shown. In the case of repressive punishments 
which are vindicatory, the trial alone is, absolutely speaking, 
sufficient. But even in their case, the admonitions and the 
precept will, as a rule, be laudably given before the trial is 
commenced, as we have stated already. 

1698. Thus our divine Master, on the occasion of confer 
ring upon His Church the power to inflict repressive pun 
ishments, whether vindicative or reformatory, at the same 
time pointed out in a manner unsurpassed and as a pattern 
for all times, the order and the course of the criminal and 

Supra, n. 1279-1306. 2 Supra, vol ii., n, 1282 sq. 

3 See our A T ew Procedure, n. 87-88. 



When can Ecclesiastical Punishments be Inflicted? 29 

disciplinary procedure, in these words : " Si autem peccaverit 
in te frater tuus, vade, et corripe eum inter te et ipsum solum. 
Si te audierit, lucratus eris fratrem tuum. Si autem te non 
audierit adJiibe tecum adhuc unum vet duos, ut in ore duorum vel 
trium testium stet omne verbum. Quodsi non audierit eos, die ec- 
clesice. Si autem ecclesiam non audierit, sit tibi sicut ethnicus ct 
publicanus" J Here our Lord speaks first of a private reproof, 
and therefore of paternal warnings ; then of a reproof before 
witnesses, and consequently of the warnings in a legal form 
and of the precept ; and lastly, by inference, of the trial or 
criminal procedure. 2 See our New Procedure, nos. 85-88. 

1699. Finally, the crime must be designated by law as punish 
able, as we have seen. Now there are two ways, in which 
the law designates a crime as punishable. First, the law 
expressly annexes a specified penalty to a certain unlawful act 
or omission ; in other words, the law itself determines the 
particular punishment. Second, the law states that an act is 
punishable, but does not express what special penalty is 
attached to it, leaving the ecclesiastical judge free to inflict 
whatever punishment he may deem just. See our New 
Procedure, or a full and clear Explanation of the Instr. Cum 
Magnopere, n. 53 sq. 

ART. II. 

When are Persons Guilty of Unlawful Acts Free from 
Punishments ? 

1700. Who are exempt from punishment. We have already 
seen that a violation of the law, in order to be punishable, 
must be imputable to the person guilty of the violation. 
Now it is admitted by all, that only human acts are imputable. 
A human act is one that proceeds from a deliberate and free 
will. Hence it must spring from man as man, that is, from 

1 Matth. xviii. 15 sq. 2 Cf. Cone. PI. Bait, iii., n. 300-309. 



30 When can Ecclesiastical Punishments be Inflicted? 

a human being as endowed with reason. The will is 
said to be deliberate when it determines itself freely to some 
act, with advertence to its malice or goodness. Hence the 
intellect or knowledge is the condition, free-will the effi 
cient cause of a human act. 

1701. Three things, therefore, are required to constitute 
a human act : i. knowledge; 2. will; 3. liberty. The will 
necessarily presupposes knowledge ; since a person cannot 
will something which is unknown to him. Freedom in its 
turn presupposes both knowledge and will ; for liberty is 
the power of choosing between several things. Now a per 
son cannot choose between two or more objects, unless he 
-wills one or the other ; and he cannot will unless he knows. 1 
Opposed, therefore, to a human or imputable act are : i. ig- 
wrance or the absence of due knowledge ; 2. grave fear, or 
;,he apprehension of serious evil ; for a person acting from 
^rave fear acts against his will ; 3. violence or force, that is, 
external or physical compulsion, actually inflicted upon a 
person by a third party. 

. i. Ignorance. 

1702. When does ignorance exempt from ecclesiastical punish 
ments? Let us distinguish between the various ways in 
which a person may violate the law from ignorance. First, 
a person may be fully aware that his act is forbidden by the 
law, and yet be ignorant of the punishment annexed to his 
act. On the other hand, he may be unaware not merely 
of the punishment, but also of the law forbidding his act. 
Second, his ignorance may be conquerable ( ignorantia vinci- 
bilis) or unconquerable (ignorantia invincibilis), according 
as he can overcome it or not by due or ordinary diligence. 
Invincible ignorance is twofold : physical and moral. Ig 
norance is physically unconquerable, when it can in no way 

1 Konings, n. 3. 



When can Ecclesiastical Punishments be Inflicted? 31 

be removed ; morally, when it can be laid aside by due 
diligence. 

1703. In like manner, vincible or conquerable ignorance 
is threefold : i. simply such (ignorantia vincibilis simpliciter), 
namely when, to remove it, some diligence or exertion is 
used, though not enough; 2. gross (ignorantia cr asset), when 
no pains at all, or scarcely any, are taken to overcome it ; 
3. studied or intentional (ignorantia affect at a\ when a person 
wilfully or designedly and intentionally shuns the means 
of removing his ignorance, in order that he may not be 
diverted from his purposes. * 

1704. It is certain, that, so far as correctional punishments 
(commonly called censures) are concerned, ignorance, even 
though conquerable, provided, however, it be not studied, 
whether of the law or merely of the punishment, exempts 
from the punishment. 2 We say, whether of the law ; this 
point requires no further explanation. We say, or merely of 
the punishment ; this would seem rather incorrect at first 
sight. 3 For a person who knows that the action which he 
is performing is forbidden by the law certainly commits a 
sin, and seems therefore liable to the punishment annexed 
by the ecclesiastical authorities to his act, even though he 
is unaware of this punishment. Yet it must be borne in 
mind tliat the reforming punishments, of which we are now 
speaking, are inflicted not simply fora wilful violation of the 
law, but for a violation of the law of the Church, which, be 
sides being wilful and malicious, is also stubborn and obstinate, 
or joined with contumacy. Now the law of the Church takes 
it for granted that a person who violates the law, with a 
knowledge, indeed, of such law, but not of the penalty an 
nexed, would not persist stubbornly in his perverse conduct, 
if he knew the punishment he would incur thereby. Hence 

1 Konings, n. 10. * Cap. 2. in 6 (I. 2} ; Konings, 1. c., n, 1664, qu. 2-3. 

3 Supra, vol. i., n. 678, sixth edition. 1887. 



32 When can Ecclesiastical Punishments be Inflicted? 

such a person is not regarded as contumacious, and therefore 
does not become liable to medicinal punishments. 

1705. We have said, moreover, provided it be not studied; 
for such ignorance springs from design and utter indiffer 
ence to or contempt of the law, and is therefore justly 
placed on the same footing with full knowledge. Hence an 
act which proceeds from such ignorance is just as punishable 
as though it had been done with full knowledge and delib 
eration. 

1706. Practical inference. From what has been said, Reif- 
fenstuel and canonists in general infer that the faithful are 
very often exempt from correctional punishments or cen 
sures, even when imposed by their own Ordinary, v. g., by 
episcopal statute; since they frequently do not know the 
penalty attached to an act which is forbidden, though they 
may be aware of the fact that the act is prohibited. 1 

1707. As to vindicative punishments, ignorance, even 
though invincible, merely of the punishment, does not, as a 
rule and absolutely speaking, exempt from such punish 
ments. The reason is, that these punishments are inflicted 
directly and mainly for the purpose of making the offender 
suffer and atone for his crime, and only indirectly to cause 
him to amend. Hence they are incurred by any one guilty 
of crime, i. e., of a wilful violation of the law. Now a per 
son who knows the law, and yet violates it, is certainly 
guilty of a wilful and malicious violation of the law, though 
he is unaware of the punishment ; and therefore he becomes 
liable to such punishments. 

1708. We say, as a rule; for where it is expressly provided 
by the law that only those shall incur the penalty, who pre 
sumptuously (temere), or advisedly (consulto), or knowingly 
(scienter) violate the law, or commit a crime, there mere ig 
norance of the punishment, even though vincible, that is, 

1 Reiff., 1. 5., t. 39, n. 32. 



When can Ecclesiastical Punishments be Inflicted? 33 

even though it could have been removed by ordinary dili 
gence, exempts from the punishment. 1 

1709. We have also said, absolutely speaking; for it should 
be ever remembered that in all her punishments, even in 
those which are called vindicative, the Church, like a good 
mother, seeks not merely to vindicate or uphold the law, but 
also to reclaim the delinquent. Consequently all ecclesias 
tical punishments, even those which are termed punitive, 
partake more or less of a reformative character. Hence 
while, strictly speaking, vindicatory punishments are in. 
curred even by those who are ignorant of the punishment, 
yet practically the Church or ecclesiastical judge will not 
unfrequently in these cases either refrain altogether from 
inflicting the punishment, or at least consider the ignorance 
a mitigating circumstance, and impose a lighter punishment. 

1710. Q. Does ignorance of the law, (not merely of the pun, 
ishment), exempt from vindicative punishments ? 

A.i. First of all, it is certain that intentional or studied 
ignorance (ignorantia affect at a) does not exempt. It is, more 
over, beyond controversy that invincible ignorance exempts 
from the punishment. For a person thus ignorant violates 
the law without knowledge, and therefore without will or 
malice ; he is on that account excused from sin, and conse 
quently also from all punishment. 

1711. 2. But does conquerable or vincible ignorance of 
the law also exempt from punishment? Here canonists differ; 
the common opinion is that it does not exempt. The rea 
sons on which this view is based are that such ignorance 
proceeds from culpable, imputable neglect to inquire into 
the existence of the law, and therefore does not excuse from 
sin nor from punishments that are punitive. 2 Those, how 
ever, who maintain the opposite contend that this reasoning 
holds indeed where a person is ignorant of the law owing to 

1 Cf. Munchen, 1. c., p. 45. " Reiff., 1. 3, t. 5, n. 321, 322; ib., 1. 5, t. 37, n. 5. 



34 When can Ecclesiastical Punishments be Inflicted? 

the fact that he takes no pains at all, or scarcely any, to find 
out the law, but not where a person uses some diligence, 
though not enough, to remove his ignorance. For, they 
say, the Church inflicts her punishments only for a wilful, 
intentional, and malicious violation of her laws. Now it can 
not be said that a violation is wilful, in the full and penal 
sense, when it proceeds from ignorance as described. This 
view, they contend, seems also borne out by the sacred can 
ons. Thus Pope Boniface VIII. says: " Ligari nolumus ig- 
norantes ; dum tamen eorum ignorantia crassa non fuerit 
aut supina." 1 Here, according to these canonists, 2 the Pon 
tiff establishes the general rule that all ignorance of the law, 
save that which is gross or affected, exempts from punish 
ment, whether punitive or correctional. Hence, they say, 
conquerable ignorance of the law (not merely of the punish 
ment) exempts from punishment. 3 

1712. This opinion, they say, is also in perfect harmony 
with the aim of ecclesiastical punishments, and with the 
more recent legislation of the Church. 4 For all ecclesias 
tical punishments, even those called vindicative, aim more 
or less at the amendment of the delinquent ; they are con 
sequently imposed more or less for stubborn persistence in 
crime. Now a person cannot be said to be stubborn and 
incorrigible, when he does not know the law, even though 
his ignorance be conquerable and therefore sinful, provided, 
of course, it be not studied or affected. 

1713. One exception, however, must be admitted to this 
rule ; namely, where a person, by reason of the duties of his 
office or position, is bound to make himself acquainted with 
the laws and regulations bearing on his office or duties. 
For in this case it is plain that a person is under a special 

1 Cap. 2 de Const in 6 (I. 2.) * Cf. Reifif. 1. c., 1. v., t. 39. n. 30. 

3 Kober, Kirchenbann, p. 205-208; Munchen, 1. c., p. 45, n. 17. 
4 Cf. Instr. S. C. de P. F. Cum Magnopere, art. II ; Cone. PI. Bait. III., n. 72, 300 
309- 



When can Ecclesiastical Punishments be Inflicted? 35 

obligation of using ordinary diligence to overcome this ig 
norance, and to become acquainted with his duties. Hence 
conquerable ignorance will not excuse him from punishment. 
Thus a rector of a parish, in the United States, who neg 
lects his duties as rector, cannot plead, in extenuation, ig 
norance of these duties. His very ignorance is of itself a 
crime. The law of the Church very justly says: " Nee ig- 
norantia te excusat, si scire debuisti, et quam debueras, non 
curasti diligentiam adhibere." ] 

1714. Another remark in regard to ignorance must be 
borne in mind. In the forum externum of the Church, the 
ignorance of the law is not presumed, but must be proven. 
For, once the Church has properly promulgated a law, she 
justly takes it for granted that it has come to the knowledge 
of all whom it concerns, except those who are very illiter 
ate. Hence, if a person pleads ignorance as an excuse for a 
criminal act, the burden of proof lies upon him, i. e., he must 
show conclusively that he really labored under such igno 
rance as will exempt him from punishment, according to the 
principles above laid down. 

. 2. Forget fulness and Inadvertence. 

1715. What has been said concerning ignorance applies 
also to forgetfulness and inadvertence. For it is clear that 
when a person violates a law of the Church from forgetful- 
ness or inadvertence, he does not wilfully violate it, unlesr 
his forgetfulness or inadvertence be culpable. Perfect for 
getfulness and inadvertence are therefore placed on the same 
footing with invincible ignorance, and consequently exempt 
from ecclesiastical punishments, whether correctional 
or punitive. In like manner, imperfect forgetfulness or 
imperfect inadvertence is placed on an equal footing with 
conquerable ignorance. 

1 Cap. ult. de injur. (v. 36); Miinchen, 1. c; Kober, 1. c., p. 206. 
- Konings, n. 10. 



36 When can Ecclesiastical Punishments be Inflicted? 
. 3. Violence and Fear. 

1716. As ignorance juris et facti exempts from ecclesiasti 
cal punishments, in the sense explained, so does violence 
(vis, violentid) or the application of physical force, and grave 
fear (metus) or the apprehension of grave evil, as of death, 
of loss of property, of mutilation, etc. Whoever violates a 
law of the Church, under these influences, does not act with 
that free will and malice which are necessary to render him 
liable to ecclesiastical punishments. Besides, no human or 
ecclesiastical law obliges under such serious inconveniences. 
It is only when the violence is inflicted, or the threats that 
produce the fear are made directly for the purpose of ex 
posing the Church and her laws to open contempt, that the 
person who is thus threatened or coerced is bound to resist 
the pressure brought to bear upon him, and that on pain of 
incurring the ecclesiastical punishments. 1 

1717. It will be readily seen, from the above, that the 
great principle underlying all that has been said is this : 
that an action, even though otherwise criminal, done with 
out a bad will, or an evil intention, is not a crime ; that no 
person can have a wicked design, unless he acts with knowl 
edge and free will. Hence a person commits a crime only 
when he violates the law knowingly and wilfully? From 
this it also follows that infants, idiots, lunatics, and imbeciles 
are incapable of committing crimes, and therefore can 
not be punished for acts which would otherwise be crim 
inal ; for they cannot harbor any criminal design or volition. 

1718. Finally, we observe that in employing the term law, 
in the above places, we mean the ecclesiastical law, not the 
secular. Moreover, we use the term in its broadest accepta 
tion ; in other words, by the word /aw, we understand all 
enactments and regulations whatever, which emanate from 
any competent ecclesiastical authority, that is, decrees and 

1 Kober, 1. c.. pp. 208, 209. * Cavagnis, 1. c., p. 90. 



When can Ecclesiastical Punishments be Inflicted? 37 

statutes of Popes, Bishops, and others vested with jurisdic- 
tion in foro externo ; of general, plenary, provincial and dio 
cesan Synods. 

ART. III. 
Who can Punish f 

1719. Who can impose ecclesiastical punishments? There is 
question (a) either of making penal laws, (&) or of actually in 
flicting punishments decreed by law. As to the former, it 
is evident that only those can enact punishments by law, 
who can make laws, namely the Pope, Bishops, and prelates 
having quasi-episcopal jurisdiction. As to Vicars capitu 
lar, (with us, administrators) see supra, n. 637. As to the 
latter case, those only can actually inflict ecclesiastical pun 
ishments, who are lawfully appointed ecclesiastical judges 
with ordinary or delegated power. The power to pro 
nounce sentence inflicting punishment pertains, as we have 
repeatedly seen, to the forum externum. 

. i. Can the Bishop exercise contentious jurisdiction 
out of his own diocese ? 

1720. The ecclesiastical judge must, as a rule, be in his 
own territory, when he inflicts punishment ; for the law of 
the Church forbids the exercise of contentious jurisdiction 
out of one s own territory. Thus the Cap. Quamvis says : 
" Sacris canonibus (est) generaliter interdictum, ne quis 
Episcopusjurisdicttonem in dicecesi exerceat aliena." 

1 Clem. Cap. unic. de for. Comp. (II. 2.) ; cf. supra, n. 210. 

This decretal or constitution was issued in the fifteenth general Council, held at 
Vienne in France, in the year 131 1. by Pope Clement V. ( 1305-1314). The occ.ision 
of its promulgation was this : There was at the above Council a number of Hi-hops, 
especially from Italy, v. g., from Milan, Vicenza, etc., who had been expelled from 
their sees, by their enemies, barons and powerful noblemen and rulers. It was at 
the request of these exiled Prelates that the above constitution was promulgated. 

Glossa in Clem., cap. Quamvis cit, v. quamvis. 



38 When can Ecclesiastical Punishments be Inflicted? 

1721. From this rule, however, the following two cases 
must be excepted : i. Where the Bishop of the place con 
sents to the exercise of such jurisdiction in his diocese, and 
the contending parties also agree to it. 2. Where the 
Prelate or Bishop is unjustly expelled or driven from his 
diocese ; for in this case the expelled Bishop can remain in 
some neighboring diocese or other convenient place, and 
there, having asked, though not obtained permission from 
the ordinary of the place, erect his own judicial tribunal and 
exercise full contentious jurisdiction over all his subjects, 
provided, however, he cannot exercise this jurisdiction 
through a substitute in his own diocese, and provided that, 
in the case of his subjects who did not participate in his 
expulsion, they be not obliged to go more than a two days 
journey to reach the Bishop. 1 Of course, as will be readily 
seen, what has been said applies only to cases where a 
Bishop is actually about to inflict punishment. For a 
Bishop may everywhere exercise voluntary jurisdiction, 
and consequently he may everywhere enact penal laws or 
statutes. 2 

. 2. Can a Bishop exercise voluntary jurisdiction outside 

his diocese ? 

1722. We have just said, " A bishop may everywhere 
exercise voluntary jurisdiction." As this teaching is of great 
practical bearing, we shall dwell upon it at some greater 
length, though it is here but an incidental question. We 
have already explained what is meant by voluntary and 
contentious jurisdiction (n. 210). Nevertheless, we deem it 
useful to elucidate the matter still further. Voluntary juris 
diction differs from contentious both as to the subject 
matter, and the manner in which it is exercised. 

1723. Voluntary jurisdiction is that which regards matters 

1 Cap. Quamvis, cit. 2 Prsel. S. Sulp., vol. 3., p. 239. 



When can Ecclesiastical Punishments be Inflicted? 39 

or affairs which the Bishop or Superior can expedite ac 
cording to his own prudent judgment, guided not by arbi 
trary motives, but by the rules of natural justice and equity; 
and which he can exercise without the formalities of judicial 
procedure. Such is (a) the gracious or favorable jurisdiction, 
by which the Superior grants favors, privileges, faculties, 
etc. , (b) the legislative and administrative jurisdiction, by 
which he enacts laws, even though penal, makes appoint 
ments to ecclesiastical offices ; (c) the correctional jurisdiction, 
by which he corrects his subjects in a fatherly manner? 

1724. The contentious jurisdiction is that which has refer 
ence to matters which are the subject of controversy, and 
which must be decided according to the formalities laid 
down by the law of the Church for trials, and not by the 
mere will of the Superior. Causes of this kind are those 
where there is a dispute between two contending parties, 
namely, (a) matrimonial causes, (b) and those relating to eccle 
siastical offices and benefices ; (c) the punishments of the 
Church, (namely those which exceed the limits of paternal 
correction), such as excommunication, suspension, interdict, 
dismissal, penal transfer, etc. In the decision of these 
causes, the superior must observe the rules prescribed by 
the Church, i. e., he must observe the juridical formalities 
of trials. 

1725. Now it is certain, as we have seen above, that an Ec 
clesiastical Superior or Judge, whether he be an Ordinary 
or merely a delegated judge, must be in his own territory 
or diocese when he exercises contentious jurisdiction, and 
that he cannot, either licitly or validly, exercise it while he 
is outside of his own district or diocese, excepting in the 
case of his unjust expulsion. 2 For by an exercise of such 
jurisdiction in the territory of another he would evidently 



1 Prael. S. Sulp., n. 279. 
Cap. 7. deoff. legat. (I. 30) ; L. 2 ff deoff. proc. (I. 16); Kober, Excom., p. 125. 



4O When can Ecclesiastical Punishments be Inflicted f 

disturb the latter s jurisdiction. On the other hand, all 
canonists agree, and it is certain, that a Bishop may exercise 
voluntary jurisdiction, wherever he may be, as well while he is 
outside of his diocese, as while he is actually in it. 1 For he does 
not thereby infringe upon the rights of the Ordinary of the 
place, since no external apparatus or display of authority 
is needed in the exercise of voluntary jurisdiction. 

1726. This is beyond controversy, so far as concerns the 
ordinary voluntary jurisdiction of the Bishop. Does it also 
apply to the delegated voluntary jurisdiction of the Bishop ? 
In other words, and to make the question more practical : 
can the Bishops, v. g., of the United States, exercise the 
faculties they receive from the Holy See which, it is 
needless to say, are delegated faculties when they are out 
of their own diocese ? The reason of this question is, that 
the Holy See, in granting these faculties, has of course the 
right to prescribe that they cannot be used by the Bishop 
when he is out of his own diocese. In fact, it would seem 
at the first glance that the Holy See had in reality made 
this condition. For in some of the faculties usually com 
municated to our Bishops, the Holy See enjoins on our 
Bishops "Nee illis uti possit extra fines suas dicecesis." 2 

1727. But as Father Konings well explains, 3 this re 
strictive clause applies to those in whose favor the above dele 
gated faculties are exercised, but not to the Bishop himself or 
the one exercising these faculties. The former must indeed 
be (a) a subject of the Bishop, i. c., have a domicile or quasi- 
domicile in the diocese, or be there as a vagus, (U) and also be 
actually in the diocese at the time the dispensation or favor 
is conferred upon him. For it is certain at present, from 
an answer of the S. C. Inq., given May 2, 1877, to the Synod 
of Maynooth, held in 1875, that the Bishop need not be in 
his diocese when he exercises the faculties granted him by 



Prael. S. Snip., n. 756. 2 Fac., form I. and C. 3 Com. in. Fac. Ap. n. 118. 




When can Ecclesiastical Punishments be Inflicted? 41 

Rome. 1 The decision is as follows : "Ad postulatum terti- 
um," (Syn. of Mayn.) " de sensu clausulae Facultatum : 
extra fines di&ccsis, responsum fuit : Verba relatas formulas 
ita esse intelligenda, ut Episcopus uti possit facultatibus 
erga subditos, qui actu quo dispensandi sunt in propria dice- 
cesi commorantur : quamvis ipse Episcopus extra suam dice- 
cesim degat" 2 

1728. Of course, where the above phrase extra fines, etc., 
is not appended to the faculties, the Bishop can exercise 
them in favor of those who are his subjects, even when they 
are at the time out of the diocese, just as in the case of his 
ordinary voluntary jurisdiction, which a Bishop or Superior 
can exercise over his subjects, even though neither he nor 
they are in the diocese at the time. 3 There is but one 
case where a Bishop cannot exercise his ordinary volun 
tary jurisdiction when he is outside his own diocese, name 
ly, where it would involve the exercise of Pontifical func 
tions (Pontificalia], v. g., when a Bishop confers the Sacra 
ment of Confirmation, or of Holy Orders. 4 For, as was 
seen above (n. 575), a Bishop cannot exercise Pontifical 
functions in the diocese of another Bishop without the con 
sent of the Ordinary of the place. 

. 3. Rules which guide the Judge, when he inflicts 
Punishment. 

1729. We subjoin a few of the general rules to be followed 
by judges: i. Only the Supreme lawgiver namely, the 
Sovereign Pontiff can establish or introduce any new eccle 
siastical punishment. Consequently the inferior Ordinary 
or delegated judge can impose only such punishments as 
are provided by the sacred canons. This is also stated in 
the Instruction Cum Magnopere of 1884, article I., as follows : 

1 Konings, in Fac., cit., n. I2O. 2 Ib. Comp., t. 2., p. 412. 

3 Ib., in fac., n. 124. Craisson, n. 281. 



42 When can Ecclesiastical Punishments be Inflicted? 

" Ordinarius pro suo pastoral! munere tenetur disciplinam 
correptionemque clericorum ita cliligenter curare, ut . . . 
remedia a canonibits statuta . . . provide adhibeat." 

1730. 2. The remedies or punishments established by the 
sacred canons are divided into two classes : Preventive and 
repressive. 1 The Preventive remedies are imposed on Eccle 
siastics who give scandal, or remain in the proximate volun 
tary occasion of sin : they are intended to remove the cause 
of the scandal, and the occasion of crime, and thus to prevent 
the Ecclesiastic from falling into crime. 2 The repressive 
punishments are inflicted upon Ecclesiastics who are not 
merely in the occasion of sin, but have already fallen into 
grievous offences. They are imposed for a twofold pur 
pose : (a) to bring the delinquent back to the path of duty ; 
(b) to deter others from breaking the law. 3 While all re 
pressive punishments have these two ends, nevertheless 
some of them tend more directly to reform the delinquent, 
others to vindicate the law, and cause it to be respected and 
observed. The latter are called vindicative punishments, 
the former reformative, as we have seen. 

1731. 3. In inflicting ecclesiastical punishments, the judge 
should naturally bear in mind their end or aim. Punish 
ments are a means to an end. The means should be such 
as are adapted to the end. Now, as we have seen, in all 
her punishments, the Church acts more like a good mother 
than a severe judge. The Church s mission is the salvation 
or sanctification of souls. 4 Hence, in all her punishments, 
even in those which are called punitive and vindicatory, she 
aims, not merely at vindicating the law, but also reforming 
and reclaiming the delinquent. She never excludes this 
latter aim altogether. 5 

1 Instr. Cum Magnopere, Art. II. 2 Ib. 

3 Ib. 4 Sanguineti, 1. c., p. 459. 

" Cf. Stremler, p. 154; Dro.ste Messmer, pp. 66, 167; Schulte, K. K. R., vol. ii., 

?. 387. 



When can Ecclesiastical Punishments be Inflicted? 43 

1732. 4. From this, it follows, that, when an ecclesiastic 
falls into crime, nothing should, as a rule, be done, if he 
amends and repairs his offence. But if he persists in his 
criminal course, he should, as a rule, be first warned repeat 
edly ; if the admonitions prove of no avail, he should be 
given the precept ; if even the latter produces no effect, he 
should be put on trial, and, if convicted, be visited with 
medicinal punishments, namely censures ; and ii even these 
fail to reform him, vindicatory punishments should follow, 
servatis servandis. 1 

1733. We have just said, as a rule: for where the offence 
committed is of great enormity and therefore shows that 
the delinquent acted with exceeding great malice prepense, 
and is, so to say, hardened in crime, or where the greatness 
of the scandal given requires it, the vindicative punishments 
may be inflicted at once, that is, without the previous ad 
monitions or precept, though not without a previous trial. 2 

1734. 5. In general, it may be said that it belongs to the 
conscientious discretion of the Ordinary to determine what 
particular punishment he is to inflict in a given case 
whether he is to impose a preventive or a repressive 
remedy ; whether the repressive measure is to be a reform 
ative or vindicatory one ; what particular preventive medi 
cinal or punitive measure is to be imposed. Thus Article 
III. of the Instruction Cum Magnoperc enacts: " Conscien- 
tice ordinarii remittitur cujusque remedii (prasventivi vel 
repressivi) applicatio, canonicis prasscriptionibus servatis 
pro casuum ac circumstantiarum gravitate." 

1735. 6. Where the law itself clearly states what punish 
ment shall be incurred for a certain offence, the judge 
should, as a rule, inflict this punishment and no other. 
Where the law leaves the judge free to inflict whatever pun 
ishment seems fair and equitable, he should be guided in 

1 Sanguined, 1. c., p. 460. 2 Cone. Plen. Bait. III., n. 300. 



44 When can Ecclesiastical Punishments be Inflicted? 

his action by good and conscientious motives, and always 
incline to clemency rather than to severity. Thus Pope Ho- 
norius III. (A. D. 1220) speaking to the Ecclesiastical Judge, 
says : " In his vero, super quibus jus non invenitur expres- 
sum, procedas asquitate servata, semper in humaniorem 
partem declinando, secundum quod personas et causas, loca 
et tempora videris postulare." x For other excellent rules 
for the guidance of the Judge, see Rota, Enchir., n. 752-761. 
See also, in regard to the discretionary power of the Ordin 
ary, our New Procedure, or a clear and full explanation of the 
Instr. Cum Magnopere, p. 25, sq. 

ART. IV. 
Upon Whom can Punishments be Inflicted? 

1736. Upon whom can punishments be inflicted? Upon all 
subjects who are juridically convicted ol crime. 2 We say, 
subjects ; here the question arises : In how many ways may a 
person become subject to an Ecclesiastical Judge so as to be 
punishable by him? The answer has been given above, 
Vol. II., Nos. 781-813. 

i Cap. n. de transact. (I. 36). * Craiss., Man., n., 6317. 



PART II. 

ECCLESIASTICAL PREVENTIVE PUNISHMENTS. 

(Remedia Prczventivd). 

General Remarks. 

1737. Having thus far shown what is meant by canonical 
or ecclesiastical punishments, for what cause, by whom and 
in what manner they are inflicted, we shall now speak of each 
of these punishments in particular. As we have seen, the 
canonical punishments of the external forum of the Church 
are divided into two classes, preventive and repressive. 
The chief preventive punishments are (a) spiritual exercises, 
(b) admonitions, (c) and precepts. All the other canonical 
punishments, whether punitive or correctional, are called 
repressive punishments. 1 Under the present heading we 
shall treat of preventive punishments ; in the succeeding, of 
repressive. 

1738. What is meant by preventive remedies? They are 
those which have for their object not so much the punish 
ment for a crime already committed, as the preventing or hind 
ering it from being committed. Hence they are thus described 
in the Instruction Cum Magnopcre, Art. II. : " Ilia (remedia 
prasventiva) ad praspedienda mala, scandalorum stimulos 
amovendos, voluntarias occasiones et causas ad delinquen- 
dum proximas vitandas ordinantur." 

1739. While, however, these remedies are intended to act 
as preventives of crime, and are therefore imposed, generally 
speaking, upon Ecclesiastics who are in culpable danger of 

1 S. C. EE. et RR., 1880., Instr. Ordinario, art. ii. et ix. ; S. C. de P. F. r 1884, 
Instr. Cum Magnopere, art. iv. et ix.; Rota, Enchir., p. 408, 



46 Ecclesiastical Preventive Punishments. 

falling into crime, and who, by these remedies namely, 
timely warnings, spiritual retreats, precepts are to be 
brought to a realizing sense of their danger and approaching 
spiritual shipwreck, and thus snatched from their near 
spiritual ruin, it does not follow that these remedies cannot 
be imposed in cases where grave offences have been already 
committed. 

1740. For, as we have seen, the law of the Church gives 
the Ordinary a great deal of discretionary power. It allows 
him, even where grave offences have been already perpe 
trated, either to refrain altogether from inflicting repres 
sive measures, or to remit them, if he judges it best, and if 
the enormity of the crime or the greatness of the scandal 
does not demand otherwise. Hence it permits \nmafortiori 
to apply preventive remedies, even where repressive ones 
could be justly imposed. All this is clearly implied in Ar 
ticle III. of the Instruction Cum Magnopcrc, and also in the 
Third Plenary Council of Baltimore, n. 309. 

1741. How many kinds of preventive punishments are 
there ? As we have seen, chiefly these three : spiritual exer 
cises, admonitions, and precepts. We shall now briefly dis 
cuss each of them. 



CHAPTER I. 

SPIRITUAL EXERCISES. 
(Spiritualia Exercitia^) 

ART. I. 
How are Spiritual Exercises Preventive Remedies? 

1742. We have shown (n. 1661.) that a punishment is an 
evil, a pain or suffering, whether of the body or the mind, 
inflicted for crime. Now a spiritual retreat may be im 
posed in two ways, first, as a general means of sanctifica- 
tion ; second, as a punishment for censurable conduct. 

1743. Spiritual exercises as a means of sanctification. The 
ministers of the Church should, above all, strive to be holy 
and perfect. Hence they should frequently follow the ex 
ample of our divine Master, and retire for a few days into 
solitude, in order to gain new strength in the service of 
God. It is for this reason that the Roman Pontiffs, especi 
ally Pope Innocent XII., by encyclical letter of the S. C. EE. 
et RR., Feb. i. 1700, and Pope Pius IX., in the encyclical 
Qui Pluribus, exhort Bishops to urge the entire clergy of 
their respective dioceses, especially Rectors of parishes and 
confessors, to make a spiritual retreat once a year. The 
words of Pope Innocent XII. are: " Sanctitas sua eosdem 
Ordinaries admonet et hortatur ut. . . universes ex clero 
sibi subjecto, sed praecipue animarum rectores, confessarios 
. . . diligenter excitent ad eadem exercitia spiritualia saltern 
semel in anno peragenda." * 

1744. Hence also the schema 3, de vita et hon. cleric., cap. 

1 Cf. Lucidi, de V. SS. LL., vol. 3.., p. 295. 



48 Spiritual Exercises. 

ii. of the Vatican Council, proposed this enactment : " Et quo- 
niam in medio corrupti sasculi facile evenit, ut de mundano 
pulvere etiam religiosa corda sordescant, ad ecclesiastici 
vero ordinis dignitatem et sanctimoniam retinendam ac fo- 
vendam, pium spiritualium exercitiorum institutum vel maxi- 
me conducat ; omni studio curent episcopi ut clerici, pras- 
sertim parochi et confessarii, singulis saltern trienniis vel quad- 
rienniis certo dierum spatio in opportunum aliquem locum 
iisdem peragendis exercitiis secedant." a 

In accordance with these directions, the Fathers of the 
Third Plenary Council of Baltimore, n. 75., enact: " Sta- 
tuimus itaque ut Episcopi clerum suarum dicecesium quotan- 
nis vel saltern singulis bicnniis in sacrum istum secessum du- 
cant ut omnes mente cordeque renovati ... ad munus sacri 
ministerii fructuosius peragendum redeant." For similar 
reasons Pope Alexander VII., in his Const. Apostolica Sollici- 
tudo, Innocent XL, by encyclical letters of the S. C. EE. et 
RR., Oct. 3, 1682, and Benedict XIV., in his encyclical Ubi 
primuin, ordained that all who were promoted to sacred or 
ders should be obliged to make a retreat of ten days, prior 
to their ordination. 2 

1745. Spiritual exercises as punishments. Now it is plain 
that this sort of retreat has nothing about it which savors 
of punishment ; for it does not contain anything that could 
humiliate or debase a person, or lower him in the eyes of 
others. On the other hand, when the Superior commands 
an inferior, out of the above cases, to make a retreat, it is 
evident that such a retreat is humiliating and painful to 
human feelings, since it implies some wrong-doing and there 
fore lowers a person in the estimation of others. Hence it 
is a punishment. Consequently this sort of retreat, which 
is the one of which the Instructions Sacra hcec and Cum Mag- 

1 See Martin, Doc. Cone. Vatic., p. 132. 

2 Cf. Bened. XIV., Inst. eccl. 104; De Syn., 1. II, c. 2., n. 16; Rota, Enchir., p. 

417. 



Spiritual Exercises. 49 

nopere speak and of which we here treat cannot be im 
posed save for an offence or some action which is proximate 
to an offence and partakes of its nature. Such are voluntary 
occasions and causes leading proximately to crime. Such 
are also other acts which, though not of themselves sinful, 
yet appear sinful in the eyes of others and thus produce 
scandal. These acts, moreover, must be not occult, but ex 
ternal and known to others. * 

1746. All this is clearly indicated by the Instruction Cum 
Magnopcre, when it says that the preventive remedies, and 
consequently also the spiritual exercises in the case, are or 
dained for the purpose of removing the occasion of scan 
dals and the voluntary proximate occasions of sin. A Bish 
op, therefore, has the right to impose a special spiritual re 
treat upon an Ecclesiastic who is the occasion of scandal, or 
who remains voluntarily in the proximate occasion of sin, and 
who consequently, though not yet guilty of crime, follows 
a slippery road leading to spiritual ruin. Such conduct is 
indeed already in itself an offence, though incipient, if we 
may use the word. 

ART. II. 
How are they imposed? 

1747. Censurable conduct is not enough. The Bishop, 
before imposing any of the preventive remedies and con 
sequently also spiritual retreats, is moreover obliged to ver 
ify in a summary or informal, though not superficial man 
ner, by due inquiry and examination of witnesses and other 
evidence, the existence of the above acts calling for a pre 
ventive punishment. This is expressly enjoined by the In 
struction CumMagnopere, art. v., in these words : " Antequam 
vero ea (remedia prseventiva) adhibeantur, summaria facto- 
rnm recognitio prcecedat oportet" 

1 Acta S.S.. vol. 15, p. 377. 



50 Spiritual Exercises. 

1748. The object of this inquiry is chiefly twofold ; i. 
In order to prevent the punishment in question from being 
inflicted upon a person who may not be guilty of any of the 
above acts ; 2. to prove the existence of these acts before 
the higher judge, in case the person who is commanded to 
make the retreat or undergo any other preventive punish 
ment appeals against this command. 1 For this purpose, 
also, the Instruction Cum Magnopcrc expressly enacts that a 
written record shall be preserved by the Bishop or Or 
dinary of this inquiry. z 

1749. Finally, /// what manner is this preliminary inquiry to 
be conducted? i. The object of this inquiry is to authorize the 
Bishop to impose a preventive, i. e., a paternal remedy, and 
not a repressive punishment, vindicatory or correctional. 
Hence this whole investigation should partake of a fatherly 
character and be conducted in a paternal spirit. Consequently 
it should be made by the Ordinary in person, since the Bish 
op is pre-eminently the father of his clergy. 3 If the Bishop, 
for good reasons, is hindered from conducting it himself, he 
may depute another Ecclesiastic to do it for him. This Ec 
clesiastic should be a man of great prudence and integrity, 
who will not be swayed by feelings of hatred or dislike, and 
who is therefore wholly free from any prejudice against 
the person whose conduct is being investigated. 4 

1750. 2. It should be made in an informal manner, i. e., in 
a plain, simple manner, and without any juridical formality. 
For, as has just been said, the whole proceeding is con 
ducted by the Bishop as a father rather than as a judge. r " 
This is also indicated by the words of the Instruction Cum 
Magnoperc, art. v., summaria factorum recognitio. In order 
to verify the facts in the case, it will nearly always be neces 
sary either to examine witnesses, or experts, or other evi 
dence. But this examination of witnesses, etc., should be 

1 Instr. Cum Magnopere, art. v. * Ib. 3 Acta S. S.. vol. 15, p. 380. 

4 Rota, Ench., p. 414. 5 Droste. 1. c., p. 76. 



Spiritual Exercises. 5 1 

conducted, as was seen, without any judicial formality. 
Therefore neither the diocesan prosecutor nor the notary 
should take any part in it, or be present at it. The office 
of these officials begins only after the Bishop, having in 
vain applied the preventive measures, makes up his mind 
to order the trial prior to imposing a repressive remedy. 

1751. 3. It is conducted non citato ncc constitute reo, that 
is, the accused person has no right to be called to or to be 
present at the examination of witnesses or any other part of 
this investigation. * For it is made merely for the informa 
tion of the Bishop. Besides, the accused cannot be invited 
or called upon to defend himself, unless there exists already 
at least a half proof of his guilt, which is not supposed to be 
the case at this stage of the proceedings. Then again, the 
witnesses, or other evidence in the case, are not examined 
for the direct purpose of obtaining juridical proof and of 
inflicting repressive punishments, but merely for the sake 
of gaining extrajuridical information and of imposing fa 
therly remedies. However, after this investigation is con 
cluded, it is advisable for the Bishop, before he imposes the 
preventive measure, to call the accused to himself and in 
form him of the information and evidence obtained in the 
inquiry, as we shall presently see. 2 

I/5 2 - 4- The whole inquiry, v. g., the examination of the 
witnesses, etc., should be made as secretly as possible, so that 
it may not become known in public : because otherwise the 
good name of the person inquired into would suffer. 3 Nay, 
it should be conducted in so prudent a manner that it Avill 
not become known even to the accused himself, lest otherwise 
his feelings be unnecessarily hurt. 4 

!753- We have seen that the preventive punishment can 
not be imposed upon an Ecclesiastic, save when he is guilty 

1 Rota, Enchir., pp. 413, 414. 2 Pierantonelli, Praxis etc., p. 74 sq. 

3 Rota., 1. c., p. 414. 4 Droste, 1. c., p. 77. 



5 2 Spiritual Exercises. 

of actions which are the proximate occasions of sin or which 
give scandal. The question now arises : Is the Bishop 
obliged, before proceeding to inflict a preventive remedy, to 
have full proof {probatio plena) of the existence of the above 
actions, or is half-proof (probatio semi-plena) sufficient ? * All 
the commentators of the Instruction Sacra H<zc of June n, 
1880, agree that half proof is at least required for the pre 
ventive remedies properly so-called. We say, properly so- 
called ; for some distinguish between the monitio paterna and 
the monitio canonica, and maintain that to give the monitio 
paterna, it is sufficient for the Bishop to have proofs or indica 
tions of guilt or of the above sinful actions, which are some 
what grave and strong, though they need not attain to the 
grade of half proof. 2 The other commentators who, as we 
shall see, teach that the canonical warnings, of which the 
Instruction Cum Magnopere, Art. IV., VI., speaks, mean both 
the paternal and the legal or canonical warning, say that half 
proof at least is always required. 3 

1754. Whatever may be said on this head, all the above 
canonists agree that, if after the above inquiry or summaria 
factorum recognitio, it is found that the evidence or proof of 
the faulty conduct of the person against whom the investi 
gation was made, though not amounting to an imperfect or 
half-proof, is yet of a grave character and not to be despised, 
it is advisable for the Bishop, before going any further, to 
call the Ecclesiastic in question to himself and to inform him 
of the charges which have been made against him. As to 
whether he should also tell him who the witnesses or ac 
cusers are, or where and how he obtained the information, 
must be left to the discretion of the Bishop. Droste 4 says 
that, though the law does not require it, yet in most cases it 

1 We speak, of course, of extrajudicial proofs. For the inquiry which is to pre 
cede preventive remedies is extrajudicial. See our New Procedure, n. 46. 

3 Pierantonelli, 1. c., p. 77 ; Droste, 1. c., p. 78. 3 Acta. S. S. 1. c., p. 37. 

4 P. 78. 



Spiritual Exercises. 53 

will be found advisable for the Bishop to let the accused 
know who his accusers are and also who the witnesses are, 
so that he may not think that his Superior places more con 
fidence in others than in him. Next the Bishop should ask 
him for his statement of the case and allow him to say what 
he thinks proper in his own defence. If he succeeds in re 
futing the charges, nothing further should be done. But if 
he does not succeed in breaking the force of the evidence, 
the Bishop should then, in a paternal manner, reprove, entreat, 
and rebuke him in all kindness and doctrine without making 
any threat whatever oi punishment. 1 If he then promises to 
desist from his evil course and repair the scandal he has 
given, and in reality keeps his promise, nothing further 
should be done. If the Bishop does not think it proper to 
invite the Ecclesiastic to come to him, he may appoint an 
other worthy and prudent Ecclesiastic to perform this 
office for him, or he may send the fatherly warning by let 
ter which must be private and not official. " 

1755. If the accused disobeys the fatherly admonition, and 
the Bishop finds that there is at least a half proof of culpa 
bility, he may forthwith impose one of the preventive reme 
dies, namely either the canonical admonition, or spiritual 
exercises, or the precept. However, before imposing the 
prceceptum, he is obliged first to give the canonical warnings. 

For the Instruction Cum Magnopere clearly states that the 
precept is to be given only when the canonical warnings 
produce no effect. 3 The precept not unfrequently contains 
a command to make a spiritual retreat. 

1756. We say, and if the Bishop finds that there is at least 
half-proof ; for, as was seen, the Bishop cannot impose the 
preventive remedies, unless there exists at least half-proof 
of culpability. This half-proof may arise not merely from 

1 Cone. Trid., Sess. xiii.,C. I , de Ref. * Cone, PL Bait. III., n. 344. 

^ Art. VII.; cf. Acta S. S., vol. 15, p. 381. 



54 Spiritual Exercises. 

the testimony of one trustworthy witness, as was seen 
above, n. 1753, but under certain circumstances also from the 
refusal of the party to come to the Bishop, when asked to 
do so, or from the admissions which he makes to the Bishop, 
in case he does come, or in general, from his extrajudicial 
confession, * or other sources of information. On the man 
ner of imposing preventive remedies, see also our New Pro 
cedure, n. 60-64. 

1 Acta S. S., 1. c.,p. 381; Pierantonelli, p, 7. 



CHAPTER II. 

CANONICAL ADMONITIONS. 
(Monitio Canonical) 

ART. I. 
What are the Canonical Warnings ? 

1757. As has been already noted, admonitions arc classed 
by the Instruction Cum Magnopere, Art. IV., VI., among the 
preventive punishments or remedies. What then is meant 
by a canonical warning? It is the legitimate act of the 
Superior calling upon a subject to amend and correct his re 
prehensible conduct and to make due satisfaction therefor. 1 
We say, legitimate act, etc., because the canonical warning, in 
order to be competent, must be made in the manner pre 
scribed by the Sacred Canons : hence its name canonical 
warning. That there are admonitions which are in no sense 
punishments, all will admit. Thus a general exhortation 
to perfection is an admonition ; every sermon is a series of 
admonitions. Yet they are not regarded as punishments in 
any sense of the word ; for they inflict no pain or humilia 
tion upon the hearer, especially as they are addressed to all 
and not to any one in particular. 

1758. But the case is different when we speak of a re 
proof, or rebuke addressed by the Bishop to one of his Ec 
clesiastics because of blame-w r orthy conduct. Such a warn 
ing is, of its very nature, painful to the feelings of the per 
son warned ; it is addressed to him individually and is based 
upon the belief that he is guilty of wrong doing at least in- 

1 De Brabandere, vol. 2, n. 1397. 



5 6 Canonical A dmonitions. 

cipient, and therefore it lowers him in the eyes of others. 
It is, therefore, a punishment, whose object is to prevent 
further and greater evil than that which has been already 
perpetrated. And in reality, it is plain that, when a Bishop 
informs one of his Ecclesiastics that his conduct is repre 
hensible and irregular, and indicates to him a different line 
of conduct to be followed, such a warning is naturally 
humiliating to the person thus addressed and grates harshly 
on his feelings, no matter how delicately and prudently it 
may be given. Hence any such warning, even though made 
in a kind, fatherly, and informal manner (jnonitio pater no], is a 
punishment. 

1759. This holds a fortiori of the warning which is given 
in a legal manner (in forma Icgali}, i. c., with all the formali 
ties prescribed by the sacred canons. For in this case the 
admonition, given as it is, in an official and formal manner, 
becomes evidently far more painful and humiliating than 
that which is given in a fatherly and informal way, and with 
all possible prudence and delicacy. 

ART. II. 
When Can the Warning be Given ? 

1760. Consequently the first condition of imposing the 
canonical warning is culpable conduct. In other words, the 
Bishop cannot reprehend an Ecclesiastic, even though it be 
merely in a fatherly way, 2 except when the latter is guilty 
of censurable acts or reprehensible conduct, as explained 
above in the case of spiritual exercises. For the very law 
of nature dictates that, as a rule, there shall be no punish 
ment where there is no offence. 3 

1761. The second condition is, that this censurable con 
duct shall be verified by a " summaria facti recognitio" as we 

1 Munchcn. 1. c., vol. 2, pp. 239-241. - Rota, Enchir., p. 421. 3 Rota, 1. c. 



Canonical A dmonitions. 5 7 

have shown in the case of spiritual exercises. It is not 
necessary to explain again in what manner this inquiry is 
to be made, since we have fully unfolded this point above, 
in speaking of the retreat. Now, it is requisite to state here 
again what we have already affirmed, namely, that at least 
half-proof, though extrajudicial, of the guilt of irregular 
conduct must be obtained in the above preliminary inquiry, 
before a canonical warning can be given. Any inferior 
grade of proof, though sufficient for the canonical warning 
given paternally, would make it incompetent and void, 
when given in a legal manner. Canonists, moreover, teach 
that, even where the degree of proof of guilt would justify 
the Superior in giving the canonical warning proper, it is 
always advisable to let the paternal warning precede the 
canonical. 

1762. Finally, the old adage should be borne in mind that 
there shall be a just proportion between the guilt and the 
punishment. As the warning in question, especially when 
conveyed in a formal and official manner, is very humiliating, 
especially to Ecclesiastics, and is, therefore, a serious punish 
ment, it follows that it cannot be given, except when the 
offence or reprehensible conduct is of a grave character. 
Slight offences should not be noticed by the Superior De 
minimis non curat Prcetor. 



ART. III. 

Is it Necessary that the Canonical Admonitions shall be Given 
in a Legal Manner ? 

1763. Q. Is it optional with the Bishop to make the 
canonical warnings either in a paternal or in a legal man 
ner ? 

A. We premise: The reason why we ask this question 
lies in Art. VI. of the Instruction Cum Magnopere, which 



58 Ca non ical A dmon itions. 

reads thus : " Canonicce monitiones vel secreto fiunt (etiam 
per epistolam vel per interpositam personam) ad modum 
paternse correctionis, vel servata forma legali adhibentur, 
ita tamen ut illarum executio ex aliquo actu pateat." 

1764. We now answer: There are two opinions; one 
affirms, 1 the other denies. The affirmative teaches that the 
above article enacts that the canonical warning can be 
made either in a paternal, i. c., informal manner, or in a 
legal i. e., formal way, namely with the formalities pre 
scribed by the Sacred Canons ; that the Bishop is therefore 
free to give the canonical warning in either of these two 
ways, as he may judge proper and opportune. According 
to this view it is immaterial and makes no difference whether 
the canonical admonitions are given in a fatherly or legal 
manner ; either mode is sufficient and both are not necessary. 
The Bishop is at liberty to choose the one or the other, as 
circumstances may demand. All that is necessary is that 
their execution or their having been really given be 
proved. 2 

1765. On the other hand, this view would appear to be in 
open and direct contradiction with the prescriptions of the 
Sacred Canons. The latter require in the clearest, most 
emphatic, and peremptory terms, and under severe pen 
alties, that the canonical warning shall be made only in a 
legal manner i. e., with all formalities prescribed by the 
Sacred Canons, 3 as laid down in our New Procedure, n. 70. 

1766. To avoid this difficulty, some commentators of the 
above Instruction, v.g., Droste, 4 interpret the above Article 
VI. of the Instruction as having reference only to the 
paternal warning, which is made obligatory prior to the 
giving of the praceptnm, and hold that the canonical admoni 
tion, in the strict sense of the term, consists in thsprceceptum, 

1 Cf. Acta S. S., vol. 15, p. 381; Rota, Enchir., p. 422. 

2 Rota, 1. c., n. 632; Acta S. S., vol. 15, p. 381. 
3 Cap. 48 /de sent. exc. (v. 39); Kober, excom., p. 157 sq. 4 L. c., pp. 102, 103. 



Canonical A dmon itions. 5 9 

of which Articles VII. and VIII. speak. In fact, they say 
the prceceptum, both as to its intrinsic form or matter and its 
external form, i. e., the formalities with which it is to be 
made, corresponds exactly to the canonical warning proper, 
as denned in the Sacred Canons and explained by canonists. 
Hence, they continue, although Article VI. of the above 
Instructions uses the words canonicce monitioncs, it would, 
nevertheless, seem to speak rather of the paternal, or, if we 
may use the word, semi-canonical or semi-official, than ot the 
strict canonical warning, and to insinuate that, even where 
this warning is made in a legal manner, it nevertheless 
should, practically speaking, take the place of the fatherly 
admonition, which, however, is made obligatory prior to the 
imposing of the prcecepttun or the canonical warning proper. 

1767. But it may be asked, if this be so, why should the 
above Article VI. employ the words monit tones canomcce, 
and expressly allow the Bishop to make them in a legal 
manner? They answer thus : I. As to the words canonicce 
monitiones, the informal or fatherly admonition may and is 
in a wide sense justly called a canonical warning. For the 
Sacred Canons, and especially the Council of Trent, 
urgently exhort Prelates always first to make use of 
repeated fatherly warnings before coming to more official 
ones. 1 

1768. 2. As to the second objection, the above Article 
VI. seems to insinuate that there are some cases where the 
Bishop may find it more opportune to give the warning in 
a paternal and informal manner ; and that there are others 
where he may deem it better to give it in a legal and formal 
way. Thus the Bishop may know that, with regard to 
certain persons, a paternal warning, given in a most prudent 
and delicate manner possible, will produce the desired effect 
In other cases, he may be morally certain, v. g., where he 

1 Cone. Trid., sess. xiii., c. I. de Ref. 



60 Canonical A dmon itions* 

has already given repeated fatherly warnings in vain, that 
a formal admonition is necessary in order to impress the 
delinquent with a salutary fear and cause him to amend. 
The Instruction, therefore, would seem to have had these 
contingencies in view, and accordingly to have left the 
Bishop free to choose either mode of giving the required 
warnings, according to circumstances. 

1769. 3. It might perhaps also be said that, as the 
Council of Trent 1 prescribes that at least two warnings shall 
precede the infliction of correctional punishments, 2 the moni- 
tiones canonicce of article VI. of the above Instruction might 
be regarded as the first canonical warning, and the prceceptum 
as the second and last. 

1770. Here we remark, in passing, that, even though it be 
said that the prceceptum constitutes the strict canonical warn 
ing, and that the monit tones canoniccz of article VI. of the In 
struction, no matter whether they are made in a fatherly 
or legal manner, practically take the place of the fatherly 
warnings, it is certain that they also partake somewhat of 
the nature of the strict canonical warning. For they must 
be given prior to, and serve as a basis for imposing the 
prceceptum and for beginning the judicial proceedings. Thus, 
they constitute the first canonical warning the prtcccptum 
being the second. Now the mere fatherly warning, as com 
monly understood by canonists, possesses neither of these 
qualities, since it can never serve as the basis of juridical 
proceedings, or be considered as the first of the two or 
three canonical warnings. Consequently, as we have said, 
the canonical warnings mentioned in article VI. of the 
Instruction are semi-official or semi-canonical warnings, par 
taking partly and chiefly of the nature of the fatherly and 
partly of the strict canonical warning. 

1 Sess. 25., c. 3. de Ref. 

2 The Sacred Canons enacted prior to the Council of Trent require three warnings,. 



Canon ical A dmonitions. 6 1 

1771. The negative or second opinion interprets the above 
Article VI. of the Instruction Cum Magnopere as speaking 
disjunctively of two kinds of admonitions the paternal and 
the canonical proper, and as imposing a strict obligation 
of making the canonical admonition in a legal manner and. 
therefore, as not leaving the Bishop free to make it either 
legally or paternally, as he may see fit. 

1772. This appears to be the view taken by the Third 
Plenary Council of Baltimore. The Council enacts that, in ac 
cordance with the Instruction Cum Magnopere, Art. VI., the 
paternal warning should be given first ; next, the can 
onical, which shall be made with all the formalities pre 
scribed by the Sacred Canons ; finally the prceceptum. x The 
words of the Council are : " Modo paternae correptionis 
(Matt, xviii., 15-17) eum (inquisitum) moneat, ut ad sensus 
meliores redeat ... at si .. monitiones paternas sperant, 
Episcopus monitiones canonicas adhibebit, servata omnino for 
ma legali. Tres numero fiant, sex dierum spatio explendas. . 
. . . Quod si monitiones in irritum cedant, Ordinarius jubet 
per curiam delinquenti analogum prceceptum intimari "... 
On this whole question, see our New Procedure, n. 65-69. 

ART. IV. 
How are the Admonitions given Paternally? 

1773. Q. What formalities are to be observed by the Bish 
op in making the canonical warning ? 

A. We speak here of the monitiones canonicce of article VI. 
of the Instruction Cum Magnopere. Having explained what 
these admonitions are, and what conditions are required 
prior to their being given, we now come to the formalities 
with which they are to be made. It is necessary to distin 
guish, at the outset, between the legal and the fatherly man- 

1 Cone. PL Bait. III., n. 309. 



6 2 Canonical A dmonitions. 

ner, in which the canonical admonitions are given. When 
given paternally, it should be made in as informal a manner 
as possible, so that the person warned may plainly see that 
it proceeds from the Bishop acting not as judge but wholly 
as lather, who, in all kindness and paternal goodness, goes 
after the stray sheep in order to reclaim it, in imitation of 
our divine Master. 1 Hence this paternal admonition should 
be made secretly, charitably, and prudently. 

1774. First, then, the canonical warning, when given 
paternally, should be secret, that is, nobody should be present 
at or made privy to it, except the Superior warning, and the 
Inferior warned. In other words, it should be made under 
four eyes. This mode of making the fatherly admonition 
is laid down by our Saviour Himself : " If," He says, " thy 
brother shall offend against thee, go and reprove between 
thee and him alone" 2 This is also clearly pointed out by 
the Instructions Sacra hczc of June 11, 1880, and Cum Mng- 
nopere of 1884, (Art. VI), when they say : " Canonical moni- 
tiones vel secreto fiunt (etiam per epistolam vel per inter - 
positam personam) " etc. Consequently it should be made, 
if possible, (a) by the Bishop in person, (b] orally, (c) and as 
privately as possible, i. e., without any^witnesses and in so 
secret a manner that it will not become known to any one. 
The best way, therefore, to make it would seem to be the one 
traced out above, under the heading of spiritual retreats. 

1775. It consists, as was shown, in the Bishop s calling the 
delinquent to himself, making known to him the accusa 
tions, hearing his explanations, and then, if the latter are not 
satisfactory, giving him the fatherly warning, i. e., pointing 
out, in a kind and prudent manner, the wrong he has done, 
or the danger he is in, and suggesting the proper remedies, 
v. g., the avoiding this or that place, such or such a person, 
or performing a retreat. 

1 Matth., xviii., 12. 2 Ib., 15. 



Canonical Admonitions. 63 

1 776. We have said above, if possible ; for where the 
Bishop finds it inopportune or impossible to make the ad 
monition in person, he can appoint some other worthy and 
prudent person to make it for him. But he should not select 
for this purpose either his Vicar-general, or any other offi 
cial of his curia, lest it would seem to partake of a judicial 
character. * In like manner, if the Bishop deems it inoppor 
tune to give the admonition orally, and that either in person, 
or through some other discreet person, he may send it to 
the delinquent by letter, which, however, as seen, must be 
private, signed only by the Bishop, and not countersigned 
by his secretary, as official and juridical documents are. 
As in the admonition given orally, so also in the one given 
by letter, no threat whatever should be made of punishment. 

1777. Although this kind of warning should be as secret 
as possible, yet a private record or memorandum of the 
whole affair, and of the inquiry that preceded it, should be 
made and preserved by the Bishop, so that, in case of ap 
peal, he may forward a statement of the case to the judge of 
appeal, or else for the purpose of enabling himself to take 
ulterior steps, if need be. 2 We say, a private record ; hence 
neither the warning, nor the proof of its execution, nor the in 
quiry, which preceded it, should be kept on file in the Episco 
pal chancery. These papers should be kept by the Bishop in 
a private place, and apart from his official papers. 3 He must 
likewise, while giving it as secretly as possible, nevertheless 
give it in such a manner that he will be able from some act 
or other, v. g., from a letter of the person warned, to prove 
that the warning was really given to the delinquent. For 
if the person warned denies that he has been warned, the 
Bishop must prove it. 4 

1778. Secondly, this admonition (the same holds, in a 

1 Droste, 1. c., p. 80 ; Rota, Enchir., p. 423. - Instr. Cum Magnoperc, Art. V. 
3 S. C. EE. et RR., 7 Oct. 1801 ; Droste, 1. c., p. 80. 
4 Instr. Cum Magnopere, Art. VI. 



64 Canonical Admonitions. 

measure, also of the formal warning and the precept) should 
be made charitably, so that the person warned will see thai 
it proceeds from compassion and kindness, and not from 
hatred or dislike. Lastly, it should be made with tact and 
prudence, i. e., it should be made in such time, manner, and 
place as are likely to cause it to be received in good part. 1 

1779. Practical observation. The Instruction Cum Magno- 
pere of 1884 enacts, indeed, at least according to the opinion 
of some canonists, that it is optional to give the first can 
onical warning either in a fatherly or in a legal form ; that 
if it be disregarded, the prczccptum, or second and last canon 
ical warning, can be at once imposed ; that, if even this 
command be set at naught, the trial looking toward inflicting 
punishment can forthwith follow. Yet it is also plain that 
article VI. of the Instruction Cum Magnopere, by its way of 
designating both the paternal and the legal warning as can 
onical warnings, impliedly advises Bishops to proceed, as a 
rule, in the following order : first, to give repeated warnings 
in a fatherly manner ; next, if they prove abortive, to give the 
warnings in a more formal, /. e., in a legal manner ; finally, 
if even the latter produce no effect, to impose the formal 
precept, or canonical warning in the strict sense. 

1780. This is also the course traced out by our Lord Him 
self. First, the delinquent is to be admonished paternally, 
i. e., privately. " If thy brother offend against thee," says 
our Divine Master, " go and reprove him between thce and 
him alone" Next, if the delinquent will not amend, he 
should be admonished in a more formal manner, i. e., before 
witnesses : " If he will not hear thee, take with t/iee one or two 
more, that in the mouth of two or three witnesses every 
word may stand." Finally, if he still remains obdurate, he 
is to be handed over to the Church or judge, for trial and 
punishment. 2 It is true that this mode of procedure is pre- 

1 Corn, a Lapide, inMalth., xviii. 15. 2 Matth., xviii., 15-8. 



Canonical Admonitions. 65 

scribed directly for private individuals. But it also applies, 
by implication, to Superiors. For our Lord explains the law 
of nature, which tells us that, before proceeding to inflict 
punishments, the Superior should do all in his power, by 
kindness and fatherly advice, to reclaim the offender, lest, by 
being visited with punishments before being warned in such 
a kind manner, the offender may become still more hard 
ened in sin. 1 

1781. Hence, as was seen, the Council of Trent 2 most 
earnestly urges Bishops to strive, before inflicting any pun 
ishment, " by exhortation and admonition, to deter them (of 
fenders) from what is unlawful ; to reprove, entreat, rebuke, 
in all kindness and doctrine, those who should happen to sin 
in any manner through human frailty, seeing that benevolence 
towards those to be corrected often effects more than au 
sterity ; exhortation more than menace ; charity more than 
.power." The Council then gives, in these beautiful words, 
the reasons for this course : " Since it is the office of a 
pastor, at once vigilant and kind, to apply first of all gentle 
fomentations to the disorder of his sheep, and afterwards to 
have recourse to sharper and more violent remedies, when 
the grievousness of the distemper may require them." 

ART V. 

Formalities of the Admonitions when given in a legal Manner. 

1782. We now come to the formalities which are to be 
observed when the canonical warnings are made in a legal 
or formal manner. The general teaching of Canonists is 
that the legal mode of making the canonical warning is, as 
was seen, the following : The warning must (a) be repeated 
three times, except in case of urgent necessity ; (b) given in 
writing ; (c) state precisely what is to be done or avoided ; (d) 

1 Corn, a Lapide, Com. in Matth., xviii., 15. ~ 2 Sess. xiii., c. I. tie Ref. 3 Ib. 



66 Canonical Admonitions. 

lay down a suitable and fixed time for compliance with the 
precept ; (e) mention the specific punishment that will be in 
flicted, in case the warning is disregarded ; (/) be read or 
handed to the delinquent in person; (g) in the presence of 
competent witnesses ; (h) be issued by authority of the 
judge. We shall now briefly explain each of these formalities. 

1783. First, the warning must be repeated three times. 
This is expressly enacted by the Sacred Canons : " Sed quia 
modo multi inveniuntur decimas dare nolentes, statuimus, ut 
secundum Domini nostri prasceptum admoneanter scmel, et 
secundo, et tertio. Qui si non emendaverint, anathematis vin- 
culo feriantur, usque ad satisfactionem et emendationem 
congruam." x Observe here that this canon states that the 
admonition is to be repeated three times, according to the pre 
cept of Our Lord. " Only in the case of urgent necessity, v. g., 
when there is periculnm in mora, is it allowed to give the 
warning but once. 3 When the Prelate gives only a single 
warning, he must expressly state in the warning that it is 
given peremptorily, or for the first and last time, and once 
for all. 4 As we shall see further on, one warning is abso 
lutely necessary to the validity of the punishment, whether 
correctional or punitive ; three are required for its licitncss. 
These repeated warnings are prescribed in order that the 
stubborn disobedience of the delinquent may thus appear 
more clearly, and also that he may have sufficient time to 
comply with the warning, or to prepare for his defence. 5 

1784. The above law is substantially retained in the In 
structions of June 11, 1880, and Cum Magnopere of 1884. 6 
For they enact that the canonical warnings shall precede 
the formal precept. Wherefore, if with us a Prelate im 
poses the precept without having previously given the 

1 C. xvi., Q. vii., can. 5 ; Cap. 96 ile sent. exc. in 6. (v.ii). 

3 Cf. Kober, Excom., p. 150. :J Arg. Cap. 9 de sent, excom. in 6 (v. 11), 

4 Kober, 1. c., p. 151. 5 Reiff., 1. v., t. 39, n. 24. s Art. VII. 



Canonical Admonitions. 67 

warning, either paternally or legally, the precept is of no 
force. 

1785. Second, it should be in writing ; this condition is re 
quired on pain of the illicitness, though not of the invalidity 
of the warning. 1 In case of necessity, it can be made orally. 
But if, out of the case of necessity, the judge inflicts a cor 
rectional punishment, after an oral admonition, he commits 
a mortal sin, and incurs severe penalties, as we shall see. 2 
Bishops however do not incur these penalties, since they are 
not expressly mentioned in the law imposing them. 3 

1786. Third, it should state clearly and unequivocally the 
precept or injunction of the Superior, namely, what the per 
son warned must do or avoid, in order to escape the threat 
ened punishment. 4 Fourth, it should fix a suitable and per 
emptory time, within which the delinquent can obey this in 
junction, if he wishes. When but a single warning is given, 
a space of at least six days must be allowed him, within 
which he may comply with the warning. In case the triple 
warning is given, a space of at least two days must intervene 
between each, so that the time for compliance with the ad 
monition is the same in both cases, namely, at least six days. 5 
However, for special and urgent reasons, or where there is 
periculum in mora, this term may be reduced to a shorter 
time, v. g., to one day or even less time. 6 The other for 
malities will be explained below, when we come to speak of 
the praceptum. See also our New Procedure, n. 75. 

1 Cap. Cum Medicinalis, de sent, excom. in 6, 2 Stremler, 1. c., p. 20. 
3 Cap. 48 de sent, excom. (v. 39); Cap. 5 de sent, excom. in 6 (v. n) ; Cap. 4 
de sent, excom. in 6 (v. n.) 

* Pierantonelli, p. 188. 5 Cap. de sent, excom. in 6 (v. II). 

e Kober, 1, c., p. 151. 



CHAPTER III. 

THE PRECEPT. 



ART. I. 
What is the Precept ? 

1787. The third and severest kind of preventive remedies 
or punishments are precepts. We shall discuss three ques 
tions : i. What is here meant by a precept ? 2. What does it 
presuppose? 3. How is it given? What then is meant by 
the Praceptum! The Instructions Sacra h<zc of June 1 1, 1880, 
and Cum Magnopere of 1884, give the answer: "Quod si 
monitiones in irritum cedant, Ordinarius jubet per Curiam 
delinquenti analogum prseceptum intimari, ita ut in hoc ex- 
plicetur quid ipse vel facere vel vitare debeat, addita respec- 
tivse pcenas ecclesiastics comminatione, quam, si praeceptum 
transgrediatur, incurret." J Hence the precept of which we 
here speak is the command of the Bishop or judge, formally 
directing a delinquent Ecclesiastic, i. c., one who, upon the 
required previous informal inquiry, has been found guilty of 
reprehensible conduct and who has been duly warned, to do 
this or avoid that, on pain of being otherwise visited, scrva- 
tis servandis, with such or such an ecclesiastical punishment. * 

1788. As will be seen, the precept bears no small resem 
blance to the canonical warnings, when given in a legal 
manner, as above described. For this reason, as has been 
noted, some Canonists, and apparently not without good 
reasons, regard the prceceptum as the real canonical warn 
ing, in the strict sense of the term. 3 This analogy or, ac 
cording to some, identity will appear more fully, when we 

1 Art. VIII. 2 Cf. Rota, 1. c., p. 430. 3 cf. Droste, p. 102. 



When can the Precept be enjoined ? 69 

come to show how the precept is made. At present we 
merely observe that the canonical warnings, which are to 
precede the precept, should indeed, no less than the precept, 
state what the delinquent must do or avoid in order to es 
cape punishment. But the precept, while imposing a com 
mand similar to that given in the warnings, imposes it in a 
more formal, precise, final, and penal manner, and with 
graver results, in case of disobedience. Hence the formal 
precept is designed to obtain by compulsion what the canon 
ical warnings failed to effect by suasion or spontaneously, 
namely, the amendment of the delinquent. * 

ART. II. 
When can it be enjoined ? 

1789. Our second question is : What does the preceptor 
command presuppose? First, it must be preceded by the 
canonical warnings mentioned in Article VI. of the Instruc 
tion Cum Magnopere. This is clearly pointed out in these 
words of the Instruction : 2 " Quod si monitiones in irritum ce- 
dant, Ordinarius jubet per Curiam delinquent! analogum prse- 
ceptum intimari." This order, consecutiveness, or gradation 
is obligatory, on pain of nullity of the procedure. Hence, 
if a Prelate, without first giving the canonical warnings, 
imposed the precept and subsequently ordered the trial for 
the violation of the precept, the whole procedure would be 
invalid. 3 In fact, if, as we have shown, the canonical warn 
ings inflict pain and are therefore punishments, it is evident 
that the precept causes far greater humiliation and is there 
fore a severer punishment than the warnings, owing to the 
solemn and formal manner in which it is made. Now the 
Church, as a rule, does not make use of the severer punish 
ment before she has tried the milder one. 4 

1 Acta S. S., 1. c., p. 382, - Instr. Cum Magnopere, Art. vii. 

3 Acta S. S., vol. xv., p. 383; Rota, 1. c., p. 430. 4 Droste, 1. c., p. 102. 



70 When can the Precept be enjoined f 

1790. Consequently, as Rota l observes, if the precept 
were imposed by the Prelate without the previous warn 
ings, it could be disregarded with impunity by the delin 
quent, since it would be notoriously invalid ipso jure, being 
against the express provision of the Instructions of June n, 
1880, and Cum Magnopere of 1884. See our New Procedure, 

n-73- 

We do not agree therefore with some authors, when they 
contend that the precept need not be preceded by the ad 
monitions. 2 

1791. The order or gradation, therefore, to be observed 
by the Superior, when he inflicts preventive remedies, is as 
follows: First, the canonical admonitions are given, and 
that either in a paternal or in a legal form ; next, when 
these admonitions are disregarded, the precept is enjoined. 
The reason is obvious : a precept, owing to its formal and 
mandatory character, coupled with the threat of specific 
punishment, is far more humiliating than mere admonitions. 
Now the law of nature dictates that the graver punish 
ments shall not be imposed until the lighter ones have been 
tried in vain. 

1792. We say, " when he inflicts preventive remedies ; " for 
when, owing to the gravity and nature of the offence, the 
Superior is constrained to proceed to repressive measures, 
the following order or gradation is to be observed. When 
there is question of repressive punishments of a reformative 
character, v. g, censures, the above gradation or order ob 
tains, except in certain specified cases, explained by us in 
this volume. In other words, the Superior first gives the 
admonition ; next the precept, and finally the trial ; and, 
upon conviction, he imposes the punishment. But when 
there is question of repressive remedies which are vindi 
catory in character, the above order need not, though it 

1 Enchir. p. 430. 2 Cf< Droste Messmer, pp. Si, 144, 148 sq. 



When can the Precept be enjoined f 71 

may laudably, be observed. In other words, the Bishop 
may order the trial and, upon conviction, impose vindica 
tive penalties, without having given the previous warnings 
and precept. 

1793. It is owing, we think, to a want of adverting to this 
distinction, that some writers have fallen into the mistake of 
asserting, in general terms and without due restrictions, that 
the admonitions need not precede the precept, and that the 
latter can be given at once, if the Superior judges it expedi 
ent ; 1 or, in general, that the Bishop may at once institute 
criminal proceedings, if he has sufficient proof of the crime, 
and that he is not bound first to make use of extrajudicial 
corrective means. 

1794. Next, the precept presupposes an offence or cul 
pable conduct, and summary verification of such conduct, 
as has been described above under the article on spiritual 
retreats. This follows from the fact that, as has just been 
remarked, the warnings should precede the precept. Now 
the warnings themselves must be preceded by guilt, ascer 
tained by a summary inquiry or investigation. We ob 
serve, before giving the precept, the Bishop or judge should, 
if need be, continue and perfect the extrajudicial and in 
formal inquiry (summaria facti cognitid) that preceded the 
giving of the warnings, so that he may have no reasonable 
doubt whatever of the culpability of the delinquent, and 
that he may be, if possible, even more certain of the guilt, 
than he was at the time he gave the canonical warnings. 
As has been seen, he cannot issue the precept, even validly, 
unless he has a moral certitude or at least a canonical pro- 
batio semi-plena of the guilt. * 

1 Droste Messmer, pp. 81, 144, 148, note 2, 149, 152. 

2 Acta S.S., 1. c., p. 378; Rota, 1. c., p. 431; Pierantonelli, 1. c., p. 84; Droste, 
1. c., p. 106. 



;72 How is the Precept given ? 

ART. III. 
How is it given ? 

J 795- Q- What are the formalities with which the precept 
is to be given. 

A. As in the case of the canonical warnings, given in a 
legal manner, so also in the case of the precept, some of the 
formalities refer to the precept itself, its contents and form ; 
others to the serving of the precept upon the delinquent. 
The formalities which regard the precept itself are chiefly 
the following: I. It is given, not by the Bishop in person, 
though at his order, but by the curia cpiscopalis, in the man 
ner stated below. Herein the precept differs from the can 
onical warnings, which, as was seen, are made by the 
Bishop himself or some person authorized by him, but not 
by the Curia. The reason of this difference is that the can 
onical warnings, even though made in a legal manner, par 
take more of a fatherly than of a judicial character, while 
the precept, though also to some extent a paternal and ex- 
trajudicial act, * nevertheless partakes more of a judicial 
than of a paternal character. 2 Hence it is proper that it 
should emanate from the judicial tribunal of the Bishop. 

1796. Consequently we cannot agree with those writers 
who maintain that the precept is wholly an extrajudicial 
act. 3 For, while it is true, as all know, that not every for 
mal or legal or official act is a judicial act, it is also true that 
those formal or official acts which, like the precept, lead 
directly to a trial and to repressive punishment, are judicial 
acts, just as the initiatory steps are considered a part of 
the whole proceedings to which they lead. 

1797. 2. It must, on pain of nullity, be in writing. We 
say, on pain of nullity ; for the Instruction Cum Magnopere, 

1 A eta S. S., 1. c., p. 382. 2 Droste, 1. c., p. 101 ; Cf. Sanguined, p, 507. 

3 Droste Messmer, p. 144. 



How is the Precept given f 73 

Art. XIV., expressly enacts: " Intimationes et notificationes 
semper in script is absolute fiant" 3. It must state clearly and 
unequivocally what is to be done or avoided, v.g., what per 
sons or places are to be shunned. This is obligatory, on 
pain of nullity, for it is evidently a substantial part of the 
precept. 1 4. It must, on pain of nullity, mention the 
specific punishment, whether correctional or punitive, that 
will be imposed if the command is unheeded. - 

1798. This threatened punishment should, of course, be in 
proportion to the offence. For the lighter offences, spiritual 
exercises are usually imposed ; 3 for the graver, suspension 
and similar punishments are generally inflicted. 4 5. It 
should fix a suitable time, within which the delinquent may 
comply with the injunction. But it need not, like the can 
onical warnings, given in a legal manner, be repeated three 
times ; it is given but once. As will be seen, these for 
malities are substantially the same as those of the canonical 
warnings described above. 

1799. We come now to the extrinsic formalities of the pre 
cept, namely those which refer to the manner in which it is to 
be communicated to the delinquent. How, then, is the pre 
cept to be executed, i. c., served on the delinquent ? The In 
struction Cum Magnopere, Art. VI II., answers thus: " Prsecep- 
tum delinquent! a Curias Cancellario coram Vicario Generali 
injungitur, aut etiam coram duobus testibus ecclesiasticis vel 
laicis spectatas probitatis. i Actus injunctionis prascepti 
signatur a partibus praesentibus, et a delinquente etiam, si 
velit. 2 Vicarius Generalis jusjurandum testibus imponere 
potest de secreto servando, si prudentera natura rei, de qua 
agitur, id requiratur," 

1800. From this, then, it will be seen that the precept is (a) 
to be read or given to the delinquent in person, who is cited 
to appear in court, for that purpose ; (&) by the chancellor or 

1 Acta S. S., 1. c., p. 383. 2 Ib. 3 Ib. * Droste, p. 105. 



74 How is the Precept given ? 

secretary of the episcopal curia; (c) in the presence either of 
the Vicar General, or of two witnesses, who are either Ec 
clesiastics or laics of marked probity, (d) An official re 
cord is then written out by the chancellor, of the whole 
transaction, i. e., of the serving of the precept in the above 
manner ; this record should be signed by all present, namely 
by the chancellor, the Vicar General or the two witnesses, 
and also by the delinquent, if he wishes. Thus a complete 
juridical proof is obtained of the execution, i. e., of the de 
livery of the precept to the delinquent. 

1801. (e) Finally, the Vicar General can compel the wit 
nesses to swear that they will not divulge the proceedings. 
The object of this enactment is to prevent scandal among the 
faithful, and also to shield the good name of the accused. 
In fact, as Rota remarks, the ecclesiastical judge should 
have nothing so much at heart, as the honor and dignity 
of the ecclesiastical state. He should therefore do all in his 
power to prevent, as far as possible, the precept or other pun 
ishment imposed by him upon an Ecclesiastic from becoming 
public. For, says the law of the Church : " Nee enim debet 
sacerdos publice pcenitere, sicut laicus." 2 Hence, says the 
above canonist, a prelate should not impose, even for very 
grave crimes, which are not yet public, suspension from 
hearing confessions or saying mass, not only on week days, 
but also on Sundays or holy-days. 3 

1802, The above mode of serving the precept takes it for 
granted that the delinquent has been cited to appear before 
the curia in order to receive the precept, and that he has 
really appeared ; 4 or that he has been accessible without 
any citation. But if he fails contumaciously to appear on 
due citation, or maliciously renders himself inaccessible to 
the curia, the precept may be sent to him (a) by a trust 
worthy person, who shall certify the serving of the precept, 

1 Enchir, p. 432. 2 Can. Presbyter 5, Dist. 82. 

3 Rota, 1. c.,p. 433. 4 Droste, p. 104. 



How is the Precept given f 75 

and whose testimony shall be full proof thereof ; or also (&) 
by registered mail, care being taken that the acknowledg 
ment of the receipt or rejection of the registered letter con 
taining the precept be kept. Such acknowledgment consti 
tutes full proof of the delivery. 1 If even this is impossible, 
v. g., if the delinquent conceals himself, so that neither the 
messenger nor the registered mail can reach him, it may be 
left at his house, or if he has none, posted on the doors of 
the church or other public place, where it may come to his 
knowledge. 

1 Instr. Cum Magnopere, Art. XIV. 



PART III. 

CANONICAL REPRESSIVE PUNISHMENTS WHICH 
ARE VINDICATORY. 

(Pocncc vindicative). 

1803. Having discussed the preventive remedies, we come 
now to the repressive. As has been already noted, repressive 
ecclesiastical or canonical punishments are divided into two 
kinds : Vindicative (pcence, parnce vindicative?) and reformative 
(pcence mcdicinales, censnrce). The former are repressive- 
punishments in the strict sense, the latter are also repres 
sive punishments in ever} sense of the term, though their 
chief and direct aim is medicinal, that is, to heal the spiri 
tual infirmity of the delinquent, and their secondary, puni 
tive or vindicatory of the law. We shall treat of vindica 
tory punishments in this Third Part, and of correctional in 
the Fourth Part of this volume. 

1804. The vindicatory punishments are divided into spiri 
tual and temporal. The chief spiritual punishments are 
dismissal, penal transfer, deposition, degradation, disqualifi 
cation for ecclesiastical offices, and incapacity for the eccle 
siastical state. The principal temporal punishments, still 
inflicted by the Church, are infamy, pecuniary fines, and as 
signment to a monastery or house of retreat. 2 Accordingly, 
we shall divide this Third Part into two sections, the first 
treating of the spiritual, the second, of the temporal vin 
dicatory remedies of the Church. 

1 Reiff " ! 5. t. 37, n. 18. Stremler, 1. c., p. 31. 



SECTION I. 

Spiritual Vindicatory Punishments. 

CHAPTER I. 

DISMISSAL OF RECTORS ALSO IN THE UNITED STATES. 

(Privatio). 

ART. i. 
Correct Idea of Dismissal or Privatio Officii. 

1805. Ecclesiastical offices, positions, and benefices, as we 
have seen, 1 may be lost, not only by the death of the incum 
bent, but also by resignation, by transfer, by the acquisition 
of another office or benefice which is incompatible with the 
first, and by privation or dismissal. Canonists, therefore, 
properly say that a person may lose an ecclesiastical office 
or position in two ways : either voluntarily, as by resigna 
tion, or compulsorily, as by dismissal or involuntary transfer, 
In the present chapter, we shall speak of dismissal ; in the 
next, of penal transfers. 

1806. Dismissal, or absolute removal, {privatio definitiva? 
remotio a munere) is a canonical punishment which consists 
in this, that an Ecclesiastic is deprived of his ecclesiastical 
office or position, without being at the same time appointed 
to another, but without being disqualified to hold other ec 
clesiastical offices or positions in the future. 2 

1807. We say, canonical punishment ; for, to take away 
from an Ecclesiastic his office or benefice, and consequent- 

1 Supra, vol. i., n. 380. 
* Supra, n. 402; Reiff, 1. 5, t. 37, n. 21 ; De Brabandere, n. 1511. 



;8 Dismissal of Rectors also in the United States. 

ly all the emoluments, advantages, and honor or standing 
and position attached to it, will evidently inflict great pain 
and suffering, bodily and mental, upon him. Hence all 
canonists agree, as we shall presently see, that dismissal is 
one of the greatest penalties of the Church. x 

1808. We say, also, without being at the same time appointed 
to another ; since dismissal is a total removal from a partic 
ular office or position, for the time being. Consequently it 
differs, in this respect, from a transfer, made with or against 
the will of the incumbent. For by a transfer a person in 
deed loses or is deprived of his office, but yet is appointed 

.at the same time to another. 

1809. We add, but without being disqualified, etc. Herein 
dismissal differs from deposition. The latter not only de 
prives a person of his office, but also disqualifies him to be 
appointed to others in future. Dismissal, on the contrary, 
merely takes away the office which a person actually holds, 
and consequently does not incapacitate him from asking for, 
and obtaining other ecclesiastical offices, benefices, or digni 
ties, in the future. Nay, it does not necessarily affect all 
the offices or benefices which a person possesses. Conse 
quently, an Ecclesiastic who lawfully holds several positions 
at the same time, may be dismissed from one, without being 
deprived of the others. * 

1 8 10. It may be observed here that, while dismissal does 
not legally incapacitate a person from being appointed to of- 
1 fices in future, yet morally and practically it produces, in 
most cases, the same result. For a dismissal casts such a 
slur and discredit upon the Ecclesiastic dismissed, that he 
will find it very difficult, if not well nigh impossible, to ob 
tain any other ecclesiastical appointment, from his own 
Bishop, or from any other Bishop. 

1811. We shall now proceed to discuss the dismissal, that 

Schmalzg. 1. 5, t. 37, n. 128; Phillips, Comp., . 87, p. 168, and 188 p 



377 



Dismissal of Irremovable Rectors. 79 

is, absolute removal, and not merely transfer, of Rectors of 
parishes or missions, also in the United States. According 
to the general law of the Church, as still in full force, the 
care of souls, or the office of Rector of a parish, is to be 
conferred upon the incumbent for life. Consequently, 
wherever this law obtains and it obtains per se everywhere 
Rectors of souls are irremovable. We say, and it obtains 
"per se" everywhere ; for, exceptionally, it is not in full force 
in certain countries. Thus, in some missionary countries, 
all Rectors are amovibiles. In other missionary countries, 
v. g.j in England, and at present, also in the United States, 
and also in France and Belgium, some Rectors are canoni- 
cally irremovable, others are not. 

1812. Accordingly, there are, at present, two kinds of 
Rectors, also in the United States removable and irremov 
able. We shall, therefore, first speak of the dismissal of 
Rectors who are irremovable ; then, of the dismissal of those 
who are not irremovable. 

ART 11. 
Dismissal of Irremovable Rectors. 

For the sake of greater clearness, we shall discuss under 
separate heads, first, the dismissal of irremovable Rectors in 
countries where canon law fully obtains ; secondly, the dis 
missal of irremovable Rectors in the United States, England, 
and Ireland. 

, i. Dismissal of Irremovable Rectors where the General 
Law of the Church fully Obtains. 

1813. Q. Why and how can Rectors who are canonically 
irremovable be deprived of their parishes, according to the 
general law of the Church, as still in force? 

1 Supra, vol. i., n. 402, 409, sixth edition, 1887, 



8o Dismissal of Irremovable Rectors. 

A. i. Only for crimes ; 2. which are very grave ; 3. and 
expressly stated in law ; 4. and upon a canonical trial. 
Hence the following rules must be observed in the dis 
missal of irremovable Rectors. 

1814. Rule L T lie dismissal can be inflicted only for crimes. 
In other words, the dismissal in the case can be inflicted, 
as a rule, only as a punishment for crimes committed by the 
incumbent. We say, as a rule. For the law of the Church 
has laid down certain cases where a Rector loses his parish 
or office ipso jure, even though he is not guilty of crime. 
Thus the Sacred Canons decree that an Ecclesiastic shall 
ipso jure lose or be deprived of his office or benefice, and 
consequently also of his parish, (a) when he obtains another 
benefice or office, which is incompatible with the first ; (b) 
when he enters a religious order and has made his profes 
sion in it ; (c) when a person who is not yet a priest obtains 
the appointment to a parish, and neglects to be ordained a 
priest, within a year after his appointment. 

1815. These cases where an Ecclesiastic is deprived of his 
office or parish, even though he is not guilty of crime, are 
all expressly enumerated in law. For, as we shall presently 
see, an irremovable Rector can be deprived of his parish 
only for canonical cause \ that is, only for causes which are 
expressly stated in law. 

1816. Outside of the above cases, which are all expressly 
given in law, dismissal can be inflicted only in punishment of 
crimes committed by the Rector. In other words, the only other 
cause, besides the above, for which an irremovable Rector 
can be dismissed from his parish or office, is crime. 2 This is 
expressly enacted by the law of the Church, as still in full 
force. 3 The reason is, that dismissal is a punishment, nay a 

1 Supra vol. i., n. 408, sixth edition. 

* Leur., For. Benef., P. iii., Q. 169, n. 2; Reiff., 1. 5, t. 37, n. 5; Munchen, 
1. c., vol. ii., p. 152, 

3 Can. 38., c. i6 : Q. 7; Gm. 7, Dist. 56; Supra . n. 418. 



Dismissal of Irremovable Rectors. 8 1 

punishment of the gravest kind. Now there can be no 
punishment where there is no crime, as we show above, 
Vol. I., n. 418, sixth edition. 

1817. That dismissal is a punishment, nay a punishment 
of the severest kind, is manifest from the very idea of pun 
ishment and from the unanimous teaching of canonists. 
For, as we have shown above, a punishment is a pain, suffer 
ing, or evil, inflicted for crime. Now, to take away from an 
Ecclesiastic his office or parish, and consequently all the 
emoluments, advantages, honor, standing, and position attached 
to it, is evidently to inflict pain, suffering, humiliation, dis 
grace, and pecuniary loss. It is, in fact, as canonists say, 
a social or civil death. For as the natural death deprives a 
person of all advantages in the natural or physical order, 
so dismissal deprives an Ecclesiastic of all that he values in 
the social or civil order of the Church. 

1818. Accordingly canonists unanimously teach that dis 
missal is one of the severest punishments of the Church. 
The great canonist Cardinal De Luca, as quoted and 
approved by the learned Jesuit canonist Leurenius, a writes : 
" Privatio et amissio beneficii in materia beneficiali dicitur 
importare poenam gravissimam et ordinariam . . . seu dicitur 
po3na major, quas in jure ordinario dicitur assimilata pcen<z 
mortis in temporalibus, cum sit mors civilis." 2 Leurenius 
himself says that dismissal or privatio is a pcena gravissima et 
ordinaria. There can be no doubt therefore that dismissal 
is a punishment, nay one of the severest or greatest of the 
regular or ordinary punishments of the Church. Hence the 
law of the Church, as well as the law of nature, prescribes 
that it shall not be inflicted save for crime. 

1819. It is, therefore, in consonance with this principle that 
the law of the Church expressly provides, that, when an 

1 For. Benef., P. iii., Q. 169, n. 2. 

3 Card, de Luca, 1. 12, Benef, Disc. 35., n. 10; Disc. 75, n. 4. Venetiis. 1734. 



82 Dismissal of Irremovable Rectors. 

Ecclesiastic, by reason of inexperience, want of knowledge 
or of ability, or by reason of old age or infirmity, becomes 
unable to discharge the duties of his office, parish, or bene 
fice, he cannot be deprived of it, ] but simply that an assist 
ant or coadjutor be assigned to him. 2 

1820. Ride II. Dismissal can be inflicted only for crimes which 
arc grave and atrocious. The reason is, that, as we have seen, 
dismissal is one of the severest punishments. Now there must 
always be a due proportion between the offence and its 
punishment. 3 

1821. Rule III. The crimes must be expressly stated in law. 
In other words, dismissal can be inflicted, not for any and 
every crime, no matter how grievous, but only for those 
heinous crimes which are expressly designated by the law of 
the Church as being punishable, either ipso facto or per senten- 
tiam, with dismissal. The law gives the Ordinary a certain 
amount of discretionary power in the infliction of minor 
punishments, but does not allow him to impose those which 
are severe, except in cases expressly stated. 4 For the 
specific crimes which have dismissal annexed, 5 whether 
ipso jure or only ferendce sentcnticz, see above, Vol. I., n. 412- 
415, sixth edition. 

1822. Here it should be observed, that, by the older can 
ons of the Church, dismissal was imposed for less grievous 
crimes than are now required, the severity of the ancient 
discipline having been somewhat mitigated by the more 
recent legislation of the Church. 6 

1823. Rule IV. The crime must be fully proved by a regular 
canonical trial. 7 This is clearly and repeatedly laid down 

1 Cap. 5, de cleric, rcgr. (iii. 6). 

2 Cap. 3, 4, de cleric, segr. (iii. 6); Cone. Tricl, sess. xxi., cap. 6; De Angelis, 
1. 3., t. 6, n. 2; Prsel. S. Sulp., vol. iii., n. 836. 

3 Leur., 1. c., Q. 169, n. 2. Supra, vol. i., n. 410, sixth edition. 

5 Leur., For. benef., P. iii., Q. 14. sq. ; Reiff., 1. 3, t. 5, n. 343 sq. 
6 Leur., 1. c., Q. 169, n. i; Stremler, 1. c., p. 33 ~ Permaneder, vU. 275, 443. 



Dismissal of Irremovable Rectors. 83 

in the law of the Church. Pope Alexander III., in his 
decretal Conquer ente nobis 7 (ii. 13), as we have shown 
elsewhere, * ordered an Ecclesiastic, who had been dismissed 
from his place without a trial, to be reinstated in his parish 
by his Archbishop, solely on the ground that the dismissal 
had been imposed without a previous trial. The Glossa, 
commenting on the above decretal Conquerente, says : " Nul- 
lus debet destitui vel spoliari etiam a prselato suo, juris 
or dine non servato." 

1824. The reason why a previous trial is required is, that 
dismissal, as we have seen, is one of the severest punish 
ments of the Church. Now it is a maxim of canon law 
that no regular or ordinary punishment whatever can be 
inflicted upon a person, unless he has either confessed his 
crime, or been legitimately, i. c., juridically, convicted of it. 
Thus Leurenius teaches : z " Cum privatio sit pcena gravis- 
sima et ordinaria, ut dictum est, hincintrat criminalistarum 
propositio, quod ad pcenam ordinariam procedi non potest, 
nisi contra legitiuie confcssum vel convictum" 

1825. It should be observed that a previous trial is re 
quired, not only when dismissal is imposed per sententiam, 
but also when it is inflicted ipso jure. In other words, a 
previous trial is required, not only when there is question 
of inflicting dismissal for crimes which have dismissal an 
nexed post sententiam, but also when there is question of 
inflicting it for offences for which the law imposes dismissal 
ipso jure. In both cases, the fact that a person has really 
committed the crime must be established by a trial. 3 But 
the sentence following such trial is different in the two cases. 
For, in the cases of crimes having dismissal annexed ipso 
jure, the sentence is merely declaratory ; that is, simply de- 

1 Supra, vol. ii., n. 1105, second edition. 3 For. benef., P. iii., Q. 172. 

3 Where the crime is notorioiis permanently, no trial is, strictly speaking, necessary. 
See our New Procedure, n. 107. But even in this case, it is safer to give a trial. 
See Cone. PI. Bait. III., n. 310. 



84 Dismissal of Irremovable Rectors. 

clares that the crime has been committed, and that therefore 
the dismissal inflicted by the law itself (ipso jure) has been 
incurred. In the other case, the sentence is condemnatory. 
1826. We have said, by regular canonical trial ; that is, by a 
solemn or formal canonical trial. For, as we have seen, the 
Sacred Canons ordain that, where punishments are to be in 
flicted, it can be done only by a formal or solemn, not by a 
summary canonical trial. In 1880, however, the Holy See 
partly modified the prescription of the Sacred Canons by 
the Instruction of the S. C. EE. et RR., dated June 11, 
I880. 1 See above, Vol. I., No. 408, sixth edition; Vol. II., Nos. 
1277, 12 J%, second edition; Our New Procedure, No. 581, sq. 



. 2. Dismissal of Irremovable Rectors in the United States. 

1827. The Third Plenary Council of Baltimore has, in accord 
ance with the schema agreed upon at the Conferences held 
in Rome, November, 1883, between the Cardinals of the 
Propaganda and our Archbishops, made the following en 
actments. i. " In singulis dioecesibus, auctoritate Episcopi, 
de Consultorum suorum consilio seligantur certas missiones, 
quas magis aptas videntur, ut parceciarum instar haberi pos- 
sint, atque a rectoribus missionariis permanenter institutis 
seu inamovibilibus sicut in Anglia regantur. 

" Ejusmodi missio, cui prseficiendus erit rector inamovibilis, 
omnino instructa esse debet ecclesia congrua, schola pro utro- 
que sexu, domo sacerdotis usui accommodata, et proventibus 
sufficientibus et satis certis ad sacerdotis, ecclesias, et schola 
necessariam sustentationem." - 

1828 2. " Missio cujus rector semel inamovibilis est consti- 
tutus, in posterum semper habebit rectorem inamovibilem, 
licet aliqua territorii parte juxta normam in n. 20 descrip- 
tam minuatur. Novarum autem parceciarum ex dismem- 

1 This Instruction is given above, vol. ii., p. 424 sq. 
2 Cone. PL Bait. III., n. 33. 



Dismissal of Irremovable Rectors. 85 

bratione efformatarum rectores non erunt inamovibiles, nisi 
Episcopi auctoritate tales constituti fuerint. Paroecix eaclem 
dismem bratione efformatse inclependentes tamen const! tu- 
entur ab ecclesia matrice." ! 

1829 3. " Pro mine 2 instituantur in singulis dioecesibus 
rectores missionarii inamovibiles tali numero, ut inter oinnes 
diceceseos rectores decimus quisquc sit inainovibilis, dummodo 
conditiones requisite adsint turn ex parte missionis, cum ex 
parte rectoris eligendi. Quae proportio (unus inter decem) 
ne inconsulto excedatur intra viginti primos annos post 
concilium promulgatum." 

1830 4. " Institutio autem rectorum inamovibilium, ut 
praescripta, ultra tricnnium a promulgatione concilii compu- 
tandum non erit differenda. 

" Inter rectores inamovibiles tamem rector ccclcsice cathe- 
dralis non est poncndus ; et quando nova dicecesis erigitur, 
rector ecclesias quam Episcopus in cathedralem eligit, ipso 
facto erit amovibilis." 

1831 5. " Ad conditiones quod spectat, qua: ex parte eli- 
gendorum ad missiones inamovibilitatis privilegio insig- 
nitas requiruntur, ut quis sacerdosejusmodi mission! prasfici 
valeat, opus erit: I. ut per decem saltern annos in clioecesi 
sacrum ministerium laudabiliter exercuerit; II. ut intra idem 
tcmporis spatium sese habilem probaverit ad parochiam 
administrandam et in temporalibus et in spiritualibus ; III. 
ut concursum faciat juxta normam infra statuenclam. Inter 
eos qui hisce conditionibus satisfecerint, electio dignioris 
relinquitur judicio et conscientirc Episcopi, salva appella- 
tione juxta constitutionem S. M. Benedicti XIV. Cum 
illud, diei 14 Dec. 1742." 

1832. According to this legislation, which now forms the 
law for this country, we have at present two classes of Rec- 

1 II)., n. 34. 

2 In regard to the meaning of the words pro mute, see note b, on p. 411 of vol. 
i. of the sixth edition of onr Lie men ts of EccL Law. 



86 Dismissal of Irremovable Rectors. 

tors: some are irremovable, others are not irremovable, as 
we show in the sixth edition of the first volume of this work, 
n. 409, 416, and in our treatise entitled, " The Neiv Proced 
ure" or "clear and full explanation of the Instruction 
Cum Magnopcre" We shall first speak of the removal (and 
by removal we here mean dismissal, not merely transfer] of 
our irremovable Rectors ; next, of that of our Rectors who 
are not irremovable. 

J 833- Q. For what causes, and in what manner can our 
irremovable Rectors be deprived of (not merely transferred 
from) their missions ? 

A. The Third Plenary Council of Baltimore answers thus: 1 
" Rector missionarius permanenter institutus sen inamovi- 
bilis, a sua missione definitive removeri non potent, nisi ob 
canonicam causam, et tarn in remediis praeventivis quam 
repressivis servata forma procedendi juxta normam Instruc- 
tionis S. Congregationis de Propaganda Fide de cognos- 
cendis et definiendis causis criminalibus et clisciplinanbus 
clericorum, quae incipit Cum Magnopcrc, nuperrime ad 
Episcopos Fcederatorum Statuum Americas Septentrionalis 
directse." 5 In other words, our irremovable Rectors can be 
deprived of their missions or parishes: i. only for canonical- 
cause ; that is, for cause expressly stated in law ; 2. and in 
the manner outlined in the Instruction Cum Magnopcrc, 
both as regards preventive and repressive punishments. 

1834. We say, only for canonical cause " nisi ob causam 
canonicam" By a canonical cause is meant a cause expressly 
stated in law. Now this law, as we have shown above, when 
speaking of the dismissal of irremovable Rectors in Catholic 
countries where canon law fully obtains, provides, i. that an 
irremovable Rector can be dismissed in certain cases specifi 
cally enumerated by it, even though he is not guilty of 

1 Cone. PI. Bait. III., n. 38. 

2 See this Instruction Cum Magnopere, together with an accurate and paraphrased 
English translation in our work entitled The New Proccdiiie, p. 255 sq. 



Dismissal of Irremovable Rectors. 87 

crime ; * 2. that, outside of these cases, the dismissal cannot 
be inflicted save (a) for crime, (&) which is very grave, (c) and 
specifically mentioned in law, 

This is also the teaching of the Third Plenary Council 
of Baltimore , when it says: " Causae ob quas rector inamo- 
vibilis deponi possit et debeat in jure continentur, et ad eas 
pertinent generatim omnia delicta in grave discrimen disci- 
plinam ecclesiasticam vel jurasive spiritualia sive temporalia 
missionis adducentia, quorum reus convictus fuerit." 2 

1835. What are, in particular, the crimes expressly stated 
in law, for which dismissal is imposed ipso facto, or can be 
imposed per sententiam ? For the answer, see Vol. L, Nos. 
412,413, sixth edition . 

1836. To these canonical causes or offences, for which 
dismissal is or can be imposed, by the general law of the 
Church, upon irremovable Rectors here as elsewhere, the 
Third Plenary Council of Baltimore has added seven other 
causes or offences for which our irremovable Rectors can 
be dismissed. The words of the Council are : " Pro praesenti 
rerum nostrarum conditione ad has causas (canonicas) nomi- 
natim pertinere declarantur sequentes : 

i. " Inobedientia pertinax in re magni momenti regulis 
ab Ordinario constitutis sive pro administratione ipsarum 
etiam rerum temporalium suae missionis, sive pro oneribus 
dicecesanis sublevandis." For the other six causes added 
by the Council, see Vol. I., No. 414, sixth edition. 

1837. We say, secondly, and in the manner outlined by the 
Instruction Cum Magnopere, both as regards preventive and 
repressive punishments. Now the mode of proceeding 
prescribed in this Instruction is as follows : Before inflicting 
punishments proper or repressive measures, even those which 
are vindicative, the Superior should, as a rule, try paternal 
remedies, v.g., admonitions, precepts, retreats. When these 

1 Supra, n. 1816. 2 Cone. PL Bait. IIL, n. 38. 



88 Dismissal of Irremovable Rectors. 

remedies prove of no avail, he proceeds to inflict repressive 
measures, in such order, however, as to impose first milder 
punishments, v.g., suspension, and afterwards the severer 
ones. The preventive remedies are to be preceded by an 
extra-judicial investigation ; the repressive, by a judicial, that 
is, by a canonical trial. 

1838. Consequently dismissal should, as a rule, be inflicted 
upon our irremovable Rectors T (a) only after the preventive 
remedies and the milder punishments have been applied to 
them, without effect, and they have thus shown themselves 
incorrigible ; (&) by a canonical trial, as outlined in the 
Instruction Cum Magnopere. This is expressly ordained by 
the Third Plenary Council of Baltimore in these words of the 
above quoted passage : " Rector missionaries inamovibilis, 
a sua missione definitive removeri non poterit, nisi ob causam 
canonicam, ct tarn in remediis prceventivis quam rcprcssivis 
servata forma procedendi juxta normam Instructionis Cum 
Magnoperc" 2 

1839. I 11 f act > as we have seen, dismissal from office being 
a privation of what is dearest to man namely, of his position, 
standing, and of the honor and emoluments connected with 
it is one of the severest punishments of the Church. Now it 
is a general principle of canon law and also of natural justice, 
that, as a rule, the heavier punishments should not be inflicted 
until the more moderate ones have been applied in vain. 3 
Therefore canonists all agree that dismissal should be made 
use of only as a last resort, and consequently only when all 
the milder remedies have been tried, but produced no effect. 

1840. From what has been said it will be seen, that our 
irremovable Rectors, though not Canonical Parish Priests 
proper, 4 yet enjoy the right of inamovibilitas in the same 

1 This applies, of course, also to irremovable Rectors in countries where canon law 
is in full force. (Prael. S. Sulp., vol. iii. n. 835.) 

a Cone. PL Bait. III., n. 38. 3 Prael. S. Sulp., vol. iii. n. 835. 

4 See vol i., note b under n. 654, sixth edition. 



Dismissal of Rectors who are not Irremovable. 89 

manner as Canonical Parish Priests in the full sense of the 
term, with the exception that they can be dismissed for 
the additional seven causes given in the above decree of 
the Third Plenary Council of Baltimore. 1 

. 3. Dismissal of our Rectors who are not irremovable. 

1841. Having seen when and how irremovable Rectors, also 
with us, may be dismissed from their missions or parishes, 
we shall now examine when and how our Rectors who are 
not irremovable may be dismissed or absolutely removed 
from their missions. 

1842. Q. For what cause and in what manner can our 
Rectors who are not irremovable be dismissed (not merely 
transferred) from their missions ? 

A. For the answer see above, Vol. 1., Nos. 415, 416, 417, 
418. See also the work recently published by us, entitled 
The New Procedure, or a clear and full explanation of the Instr. 
" Cum Magnopere " of 1884, chapter VIII., article XLV., Nos. 

581-593- 

1843. I n these places we maintain that, as under the 
Instruction of July 20, 1878, so also under the Instruction 
Cum Magnopere of 1884, a removable Rector cannot, as a rule, 
be dismissed from his mission save (a) for crimes, (b) and by 
trial. * 

1844. That this teaching is correct, is now beyond doubt, 
as appears from a very important decision recently given by 
the S. C. de Prop. Fide, and graciously communicated to us 
by His Eminence, the Cardinal Archbishop of Baltimore. 
This decision is as follows : " Jamvero Emi Patres S. Con- 
cilio Christiano nomini propagando prsepositi in Comitiis 
Generalibus die 28 Martii 1887 habitis sequentia decreverunt : 
In casibns remotionis pcragcndce, seu privationis totalis ab officio 
Rectoris, (iibi de amovibilibus sermo sit} in pcenam criminis 

1 Cone. PL Bait. III., n. 38; supra, vol. i, n. 414, sixth edition. 
2 Our New Procedure, n. 591. 



90 Dismissal of Rectors who are not Irremovable. 

vel rcatus disciplinaris, canonicus processus juxta prcc fates In 
struct ionis " Cum Magnopere " et Concilii III. Plenarii deer eta 
ton fid debet." 

1845. This is in harmony with the letter and spirit of the 
common law of the Church as laid down in the Sacred 
Canons. For it is a general principle of canon law, enunciated 
by Pope Gregory, that an Ecclesiastic, even though he be 
amovibilis, shall not be deprived of his office, especially when 
the care of souls is annexed to it, except when he has made 
himself unworthy of it by crime. The words of the great Pope 
are : " Satis perversum et contra ecclesiasticam probatur 
esse censuram ut frustra pro quorumdam voluptatibus suis 
quis privetur officiis, quern sua culpa vel f acinus ab officii quo 
fungitur gradu non dejicit." 1 The Glossa, commenting on 
this passage, says : " Non enim privandus est quis jure suo, 
nisi pro gravissimo delict o" The same Pontiff decrees in 
another place : " Ouam (ecclesiam) si juste adeptus fuerit, 
hanc nonnisi gravi culpa coram Episcopo canonica severitate 
amittat." 2 The Glossa, in explaining this passage, writes : 
" Et postquam ipsam (ecclesiam) juste fuerit (aliquis) adeptus, 
nonnisi gravi culpa inter veniente coram Episcopo or dine 
judiciario probato, earn perdat." 

1846. This legislation is founded upon natural justice. 
For the dismissal, also of a removable Rector, is a privation, 
or taking away from him, of office, and consequently also 
of the honor, position, and emoluments connected with the 
office. Hence it inflicts both disgrace and pecuniary loss, 
and is therefore ^punishment, nay, a punishment of the sev 
erest kind. Now the very law of nature prescribes that, as 
a rule, there can be no punishment where there is no crime, 
and that the crime must be established by a trial. 

1847. Here it may be asked : What, then, is the difference 
between our removable and irremovable Rectors, if neither 

1 Can. Satis 7, D. 56 ; Corpus Juris Can. cum Glossa, Lugd. 1555. 
2 Can. Inventum 38, causa 16, Q. 7. 



Dismissal of Rectors in England, 9 1 

can be dismissed without a trial ? For the answer, see 
above, Vol. I., No. 418, sixth edition.^ 

. 4. Dismissal of Rectors in Ireland, England, Scotland, and 
other English speaking Countries. 

I. Dismissal in England. 

1848. Q. HOAV are Rectors dismissed, that is, absolutely 
removed from their missions, in England ? 

A. We premise: First, there are, as yet, no canonical par 
ishes in England. This appears from the following decree 
of the First Provincial Synod of Westminster, which is 
still in force : " Neque enim parcecias circumscribere vel 
canonice instituerc licet, turn ob locorum ubi existunt 
ecclesise inter se distantiam, turn quod multis in casibus, 
ecclesiarum loco, missionibus inserviant oratoria virorum 
laicorum aedibus annexa, necnon alias ob causas, quas hie 
enumerare supervacaneum videtur. Quapropter Archiepis^ 
copus et Episcopi supplicandum censuerunt SSmo Domino 
Nostro, ut dignaretur concedere ac sancire formam regi- 
minis abipsis propositam, per quam. . &\. parochialis regiminis 
methodus paulatim introducer etur. Quibus nostris precibus 
SSmus annuit, ut patet ex decreto a S. C. de Prop. Fide die 
21 Apr. 1852 emisso. 

1849. ! Hujus igitur vigore, donee a S. Sede aliter 
provideatur, in singulis dioecesibus, auctoritate Episcopi, de 
consilio tamen Capituli, ecclesiae nonnullae seligantur, quae 
magis aptae videntur, ut adinstar paroeciarum Jiabcri possint. 

1850. 2. lis ordinarie praeficiatur sacerdos qui titulum 
habeat Rectoris Missionarii, qui ecclesiae et animarum curarn 
gerat, quemadmodum caeteri ecclesiis in Anglia praepositi , 
sed perrnanenter institutus habeatur. . . . 

1851. 3. In caeteris ecclesiis seu missionibus, simplices 
missionarii, ad nutum Episcopi amovibiles, curam animarum 

1 See also the Acta S. S., vol. iii., p. 506 sq; De Angelis, Prael., 1. i., t. 28, n, 7, 



92 Dismissal of Rectors in England. 

habebunt, intra limites unicuique mission! ab Episcopo pro 
tempore assignatos. " 

1852. We premise again: While there are no canonical 
parishes proper in England, there are, as is evident from the 
above passage, two classes of Rectors : some are appointed 
permanently (parochi pennanentcr institnti, Rcctorcs mission- 
arii) ; the others are amovibiles ad nutnm Episcopi. 

1853. We now answer: Rectors in England who are 
permanently appointed cannot be validly dismissed from their 
missions or quasi-parishes, (a) except for grave crimes ; (b) 
and by trial before the Commission of Investigation, which 
is to be established in every diocese, and is composed of 
five priests, presided over by one of their own number, as 
chairman. The manner of proceeding or of conducting the 
trial is outlined in the acts of the above Synod of Westmin 
ster, 2 and is substantially the same as that given in the 
Instruction of July 20, 1878, for the United States. 

1854. In regard to the dismissal of removable Rectors in 
England, the ecclesiastical legislation oi that country is 
silent. It is, therefore, necessary to fall back on the general 
principles of canon law and canonical equity. These arc 
set forth by us above, Vol. I., Nos. 415-420, sixth edition. 
They are, briefly stated, as follows : Dismissal, even of re 
movable Rectors, is a privation or taking away of what is 
and should be as dear as life itself, namely of social standing 
and of the means of an honorable subsistence. Hence it 
entails not only dishonor and disgrace, but also the loss of 
support. Consequently it inflicts the greatest pain and 
humiliation. It is, therefore, a great punishment, and can, 
in consequence, be imposed, as a rule, only (a) for crime, 
(b) and by trial, in which the substantial rules of justice, as 
laid down by the very law of nature, are observed. What 

1 Cone. Prov. Westmin. I., 1852, Decretum xiii. See Coll. Lac., Vol. iii, pp. 925, 
959, 960. 

- Coll. Lar.. vol. iii, pp. 925, 960. 



Dismissal of Rectors in Ireland. 93 

are these substantial formalities or rules of justice ? For 
the answer, see above, Vol. II., Nos. 692, 693, 694, second 
edition, 1888. 

//. Dismissal in Ireland. 

1855. Q. How are Parish Priests dismissed from their 
Parishes in Ireland? 

A. Before answering we remark : The general law of the 
Church respecting canonical parishes and canonical parish 
priests is in full force in Ireland. In other words, the 
churches or congregations are canonical parishes, and the 
Rectors canonical Parish Priests, in the proper sense of the 
term. They are consequently irremovable. 1 This was their 
status prior to the Synod of Maynooth, held in 1875 ; and 
it was not changed by that Synod. Hence this status still 
exists in Ireland. His Grace, the Most Rev. Dr. Walsh, 
the present illustrious Archbishop of Dublin, wrote us, a 
short time since, in reply to our inquiry, that the ecclesias 
tical status and legislation in Ireland are about the same, at 
present, as they were under the Plenary Synod held in 
Maynooth, in 1875. 

1856. We now answer : Parish Priests in Ireland can be 
deprived of their Parishes (a) only for causes or crimes 
expressly stated in the sacred canons ; (b) and by a canon 
ical trial. However, the Synod of Maynooth states that 
in Ireland, owing to the law of the land, the formalities of 
trials, laid down in the sacred canons, cannot be observed 
in every particular, and seems to leave the determination 
of the particular mode of conducting trials to the Pro 
vincial Councils of the respective provinces. The words 
of the Fathers of Maynooth are : " Cum vero in hac 
regione omnes formae in jure canonico praescriptae pro 
judiciis ecclesiasticis nequeant observari, habita legis civi- 

1 Cf. Syn. PI. Mayn., pp. 109, 299, 300. 



94 Dismissal of Rectors in Ireland. 

lis ratione, cavendum ut saltern ea omnia fiant quae ad 
veritatem inveniendam et ad justam rei defensionem ne- 
cessaria sunt. Qua de re in Synodis Provincialibus sedulo 
agendum erit." * 

1857. At the same time this Synod, in the decree just 
quoted, refers to, and embodies in its Acts, 2 the mode of 
proceeding adopted in England, and would therefore seem 
to recommend that the Parish Priests in Ireland be dis 
missed upon trial, to be conducted before Commissions 
of Investigation, as is the case in England and was also 
prescribed for the United States in the Instruction of July 
20, 1878. 

1858. The obstacle on the part of the civil law referred 
to in the above decree appears to be the prohibition to 
swear in witnesses. 

For, as appears from the testimony in the famous trial of 
the Rev. Robert O Keefe, P. P., v. His Eminence Cardinal 
Cullen, the swearing in of witnesses by the ecclesiastical 
judge, in Ireland and also in England, seems illegal and pos 
itively forbidden by the law of the land. Thus the Most 
Rev. Dr. Leahy, Archbishop of Cashel, being examined for 
the defence, and asked : " Now, in proceeding in canon law, 
must not witnesses be sworn ? " answered thus : " Yes, that 
is one of the formalities, and it is because witnesses cannot 
be sworn in such a proceeding in this country that an or 
dinary judicial proceeding is impossible." 3 In the United 
States the swearing in of witnesses is not forbidden by the 
civil law, as we show above, Vol. II., Nos. 843, 1344. 

1 Syn. PI. Mayn., n. 261. 2 Ib., p. 248. 3 See vol. ii., n. 843. 



Support of Dismissed Rectors. 95 

ART. III. 

^Support of Dismissed and Suspended Ecclesiastics. 
i. Support of Dismissed Rectors. 

1859. Q- I s an Ecclesiastic who is dismissed from his par 
ish, office, or benefice, to be left without any support what 
ever, even though moderate ? 

A. We premise: we say in the question, even though 
moderate ; since there can be no question of giving Ecclesi 
astics who are discharged for unworthy conduct an ample 
or even comfortable living, such as they had when they 
were in good standing. The law of the Church, as laid 
down already by the great Apostle of the Gentiles, is : " They 
who work in the holy place, eat the things that are of the 
holy place : and they who serve the altar, partake with the 
altar. . . they who preach the gospel, should live of the 
gospel." a In other words, those Ecclesiastics only are en 
titled in justice to a sustentatio congrua, 2 that is, comfortable 
living, in keeping with the dignity of their state, who work 
in the ministry. Consequently those who, by their own 
criminal conduct, render themselves unworthy to work in 
the sacred ministry, and are therefore deprived of their 
office or suspended from it, have no right to this ample and 
honorable support, derived from the income of the office. 
The reason is plain. For, to give such Ecclesiastics the 
same ample support which they received while they 

1 I. Cor., ix., 13-14. 

2 By congrua sustentatio is here meant not a scanty, but a comfortable and honor 
able support ; that is, a living which supplies, not merely the necessaries, but also the 
comforts of life, in keeping with the ecclesiastical state. When a person is ordained 
ad titulum beneficii or missionis, this support is derived from the income of his 
office, benefice, or mission. When he is ordained ad titulum Patrimonii, it comes 
from his private property. Dismissal or suspension, as is evident, only entails the 
loss of the income of the office or mission, but not of the Patrimony. 



96 Support of Dismissed Rectors. 

were in good standing, would be putting a premium on 
crime. l 

1860. We now answer: While unworthy Ecclesiastics 
who have unfitted themselves for work, and are in con 
sequence deprived of their office, cannot claim an ample 
support, they are nevertheless given as much as is neces 
sary to supply their actual wants. In other words, they 
receive, not the comforts, but merely the necessaries of life, 
in order that they may not be obliged to go begging or to 
engage in secular pursuits, to the disgrace of the entire 
ecclesiastical state. 

1 86 1. This appears to be also the teaching of the Third 
Plenary Council of Baltimore, which says : " Quamvis itaque 
sacerdotes, qui ob suam culpam a sacris arcentur functioni- 
bus, non possint titulo justitias ab Episcopo exigere, ut 
eorum temporali necessitati provideat (Cone. Plen. Bait, ii., 
n. 77) ; qui enim titulo missionis ordinantur ex missione 
sustententur, ita ut ii solum qui in sacrario operantur, quae 
de sacrario sunt, edant (I. Cor. ix. 13, 14). . . attamen, quo 
efficacius aberrantes in semitam rectam reducantur, enixe 
commendamus ex S. Congregationis de Propaganda Fide 
consulto, ut domus qusedam a religiosis viris regendas in- 
stituantur, ubi sacerdotes lapsi, qui spem fundatam conver- 
sionis exhibent, pro tempore ab Episcopo statuendo, vitam 
degant." 2 

1862. This is also the common teaching of canonists.* 

1 Natural justice itself requires that the good servant should be rewarded for his 
fidelity and labor, and therefore receive a just and ample support for his labors, and 
that, on the other hand, the unworthy servant should be punished and lose the 
emoluments of his office. The Church, therefore, acts in harmony with natural just 
ice and equity, when she deprives unworthy Ecclesiastics of such an income as will 
supply them with the comforts of life, and leaves them merely what is necessary 
to keep them from begging or doing secular work. 

2 Cone. PI. Bait. III., n. 72. 

3 Cf. Schmalzg., 1. 5, t. 39, n. 305 ; Miinchen, 1. c., vol. ii., p. 234; Droste, 122, 
pp. 156, 157. 



Support of Dismissed Rectors. 97 

Thus Stremler 1 writes: " For the rest, dismissal from 
benefice always leaves to the Ecclesiastic who is dismissed 
the right to the means of subsistence. The ecclesiastical 
judge is bound in conscience to provide for the support of 
the person condemned, and if he refuses to comply with 
this duty of justice, he can be compelled to do it by his 
Superior. He should assign to the cleric who is deprived 
of his benefice and who has no other means of subsistence 
an alimentary pension, or keep him in a monastery, accord 
ing to the gravity of his offence, and not allow him to 
tramp about, deprived of all means of living. For, say the 
Sacred Canons : " Pauper t as cogit ad turpia" 

1863. This whole teaching is based on the general prin 
ciple, frequently laid down in the Sacred Canons, that an 
Ecclesiastic, even though he is guilty of crime, nevertheless 
remains an Ecclesiastic, and should therefore not be placed 
in such a position as to be obliged to go begging, or to 
engage in secular pursuits. In fact, what is the dignity and 
power of the priesthood ? St. Augustine exclaims : " O 
veneranda sacerdotum dignitas, in quorum manibus, velut 
in utero virginis, Filius Dei incarnatur ; O venerabilis 
sanctitudo manuum ! O felix exercitium ! Qui creavit me 
(si fas est dicere) dedit mihi creare se : et qui creavit me, 
sine me, Ipse creabit se, mediante me." : St. Ephrem calls 
the priesthood " magna, immensa, infinita dignitas." 

1864. The Church has been at all times most anxious to 
preserve and to increase the respect due to the priestly 
dignity and character, and to remove and forbid whatever 
may tend to lessen it. Hence she has, from the earliest 
days down to the present, forbidden priests to enter upon 
secular pursuits or to beg for a living. 3 The reason is thus 
given by the S. C. de Prop. Fide, in its Instruction " de 
titulo ordinationis * issued for the United States, Apr. 27, 

1 Des Peines eccl., pp. 31, 32, 33. 2 Horn. 2 in Ps. 37. 

3 Can. 26, Dist. 86; Can. I, 2, 3, 9, Dist. 87; Can. 23, Dist. 93. 



9 8 Support of Dismissed Rectors. 

1871 : Cum indecorum omnino sit, atque a clericorum, 
qui in sacris ordinibus ^onstituuntur, dignitate prorsus 
alienum, ut ipsi aut emendicatis subsidiis aut ex sordido 
qucestu ea quse ad vitam necessaria sunt sibi comparare 
cogantur." The Council of Trent 1 also says: " It beseems 
not those who are enrolled in the divine ministry, to beg, 
or to exercise any sordid trade, to the disgrace of their 
order." 

1865. In order to remove Ecclesiastics from any necessity 
of begging or engaging in secular business, the Church 
strictly enjoins that those who are promoted to sacred 
orders should be provided with a competent and sufficient 
means of support. 2 

1866. Now, as we have seen, the motives which cause the 
Church to assign to priests a suitable living and to forbid 
them to beg or engage in sordid trade, apply also, in a 
measure, to priests and Ecclesiastics whose conduct has 
made them unworthy of their office. For, even though 
they are guilty of crime, they are nevertheless priests 
forever. The sacerdotal character and dignity remain in 
them for all eternity. Consequently the Church is 
solicitous to preserve even in them the dignity of the 
ecclesiastical state. Hence, even when she deprives such 
Ecclesiastics of their offices or parishes, she does not take 
away from them all means of subsistence ; she does not 
reduce them to beggary or the necessity of engaging in 
sordid secular avocations. 3 She does not, it is true, supply 
them with the ample and honorable support which is due, 
as a matter of justice, to the worthy priest, who labors 

1 Sess. 21, cap. 2 cle Ref. * Cone Trid., sess. 21, cap. 2 de Ref. 

3 Where these Ecclesiastics, who are dismissed, or suspended a beneficio, have 
other sources of income besides those of the office from which they have been dis 
missed or suspended v.g., where they have means of their own the Ordinary is 
not bound to give them even a moderate allowance. For, as was seen, the moderate 
support is to be given only to those who need it, and who would otherwise be obliged 
to beg or do secular work for a living. 



Support of Dismissed Rectors. 99 

faithfully in the ministry. But she nevertheless gives him 
such a support as will enable him to meet his actual wants. 
She does this, not so much as a matter of justice, or out 
of consideration for the offender, as out of regard for the 
ecclesiastical dignity. 

1867. Of course, the Church gives this moderate or scanty 
allowance only to those who are willing to amend. For to 
those who persist in their evil course and give no sign of 
amendment nothing whatever need be given, unless they 
are in extreme need or in danger of starvation. 

1868. This is apparent also from the following declaration 
of the S. C. de Prop. Fide, inserted in the Acts of the Third 
Plenary Council of Baltimore : * " Utrum et quomodo decla- 
randum sit, sacerdotes titulo Missionis ordinatos, qui se 
indignos reddiderunt sacri ministerii exercendi, hoc titulo 
privari ; neque Ordinarium teneri ad sustentationem illis 
praebendam." To this question the Cardinals of the 
Propaganda, in their general meeting, held Febr. 4, 1873, 
replied : " In casu, prout exponitur, praevia declaratione 
ejusmodi sacerdoti ab Episcopo facienda, et quamdiu prasdic- 
tus Sacerdos in sua prava vivendi consuetudine perseverat, 
nullum exhibens sincerae resipiscentias signum, Episcopum 
non teneri ad sustentationem illi praebendam. Sejunctim 
autem a resolutione dubiorum per epistolam significetur 
Ordinario (eidem episcopo), ut ad dictam declarationem 
non deveniat, nisi postquam paternis ac repetitis monitis 
ejusmodi sacerdotem ad resipiscendum frustra invitaverit." 

1869. It is in the light of this declaration that the following 
decree (n. 77) of the Second Plenary Council of Baltimore, 
as retained by the S. C. de Prop. Fide, in its Instructions 
Quamvis of July 20, 1878, z and Cum Magnopere of 1884, 3 is evi- 

i P. 210. - Ad Dubia, I. 

3 Art. xlv. The words are: " Concilii PI. Bait. IT. decreta, n. 77, 108, quoad juridi- 
cos effectus remotionis missionariorum ab officio, nullatenus innovata sen infirmuta 
intelliguntur. " 



i oo Support of Suspended Ecclesiastics. 

dently to be understood : " Sacerdotes quibus per Ordinarii 
sententiam sacerdotii exercitium interdictum fuerit, nullum 
jus habent ad sustentationem ab eo petendam cum ipsi se sua 
culpa missionibus operam navandi incapaces reddiderint." 
What has been said holds not merely of dismissal, but 
also of deposition, which is nothing else than dismissal 
joined with disqualification for any future appointment. 

. 2. Support of suspended Ecclesiastics. 

1870. We here speak only of suspension a beneficio, which 
alone affects the income of the benefice or office. By 
suspension a beneficio is meant the prohibition to draw the 
income of the benefice. In the United States, the act of 
the Bishop forbidding a Rector or an assistant priest to 
draw his salary would be suspension a beneficio. This 
suspension may be total or partial. In other words, an 
Ecclesiastic may be forbidden to draw his salary, either 
wholly or only in part. In the following lines we speak of 
total suspension from benefice. 

1871. Q. Is an Ecclesiastic who is suspended from receiv 
ing the income of his office to be left without any support 
whatever? In other words : Is a cleric who is suspended 
a beneficio deprived, during the time of his suspension, 
completely and absolutely, of the income of his benefice 
or office, in such a manner as not even to be allowed to 
receive as much as is necessary for his support ? 

A. When the suspension is inflicted, not as a censure 
proper or correctional punishment, but as a vindicatory 
punishment (which is the case when it is imposed for a 
determinate period of time, or for crimes altogether past), 
the ecclesiastical judge is bound to assign to the person 
thus suspended, out of the income of his benefice or office, 
as much as is required for his support. * 

1 Schmalzg., 1. 5, t. 39, n. 305; Kober, The Suspension, p. 122; Glossa in Cap. 
25, de elect., v. admiserunt (I. 6). 



Support of Suspended Ecclesiastics. i o i 

1872. This teaching is clearly laid down in the law of the 
Church. One or two examples from the Sacred Canons will 
place it in a clearer light. A certain deacon had knowingly 
and wilfully celebrated mass before he had been ordained a 
priest. Pope Urban III., (A. D. 1186.) to whom the case 
was referred, ordered that for this crime he should be 
suspended from his office and benefice for two or three 
years, as the Third Lateran Council directs ; but that never 
theless he should be left the necessary means of support, 
lest he should be obliged to return to secular pursuits. His 
words are : " De beneficio autem misericorditer agatur cum 
eo, ne sustentatione privatus ad sceculi ncgotia revcrtatnr" * The 
Cap. 25, de electione (i. 6) gives another instance. Certain 
Ecclesiastics had knowingly elected a person to an eccles 
iastical office, who was disqualified by the Sacred Canons. 
For this offence, they had incurred suspension from their 
benefices for three years. Nevertheless the Glossa, comment 
ing on the word admiscrunt of the above decretal, says : 
" Tamen modicam sustentationem debent time habere, ne ex 
toto egeant." 

1873. In both these cases, there is question of suspension 
for a determinate time, and therefore of suspension inflicted 
as a punitive, and not as a correctional punishment. And 
reasoning from these canons, canonists assert it as a general 
principle, that an Ecclesiastic who is visited with a vindica 
tory punishment, whether it be dismissal or deposition, or a 
suspension which is punitive, shall always be provided with 
the necessary means of subsistence. 

1874. Canonists, however, teach that an Ecclesiastic can 
be left temporarily without any support, where he is sus 
pended a beneficio, not by way of pure punishment, but by 
way of censure proper or correctional punishment. In 
other words, an Ecclesiastic is not entitled to any support 

1 Cap. Ex litteris, de cleric, non ord. (V. 28.) 



1O2 Support of Suspended Ecclesiastics. 

whatever, except he be in extreme or absolute want, when 
the suspension from his income (susfensio a bene field) is 
inflicted upon him as a medicinal punishment or as a cen- 
sure. The same applies to excommunication, which also de 
prives an Ecclesiastic of his income, is always a correctional 
punishment, and can never be inflicted as a vindicatory 
punishment. * 

1875. The reason is, that, in this case, the Ecclesiastic 
has it in his power to regain, at any moment, his income 
or support, by returning to the path of duty. For it is 
the peculiar characteristic of censures, when imposed as 
correctional and not as vindicatory punishments, that they 
are to be withdrawn as soon as the offender amends. They 
are spiritual medicines intended to heal a spiritual malady. 
Hence they should be discontinued as soon as the spiritual 
disease is cured, that is, as soon as the offender becomes 
penitent and recedes from his obstinacy and incorrigibility. 
Consequently, as soon as a person who is thus under 
censure becomes repentant, he acquires at once, by his 
amendment, the strict right to absolution from the censure, 
and the Superior is strictly obliged to accord this absolu 
tion, as soon as he becomes aware of this amendment. 2 If 
the Superior refuses to grant the absolution, the higher 
Superior, when appealed to, is directed by the Sacred 
Canons to impart it. 3 Consequently, if an Ecclesiastic, 
thus suspended for contumacy, or excommunicated, chooses 
of his own free will to remain deprived of his income, by 
continuing in his perverse, obstinate, and contumacious 
course, he has nobody to blame but himself, since he has 
it in his power at any moment to regain his income, by 
repentance. But even in this case, if the cleric is in 
extreme want, he should be given what is absolutely neces- 

1 Cf. Kober, Excom. p. 354. 

8 Cap. 25 de appell, (2. 28) ; Cap. II de Const, (i. 2). 

3 Cf. Kober., Excom., p. 451 ; Kober, Susp., p. 121. 



Support of Suspended Ecclesiastics. 103 

sary for his support, in order to keep him from starvation. 1 

1876. The case is quite different with punishments which 
are punitive, namely, with punitive suspension, with dis 
missal, and deposition. The cessation or withdrawal of these 
punishments depends rather on the will of the Superior or 
of the law, than on the amendment of the delinquent. It 
does not, at least absolutely speaking, lie in the power of the 
person punished to have the punishment remitted by good 
conduct. Hence the law of the Church provides that, not 
so much for the sake of the Ecclesiastic himself, as for the 
honor and dignity of the ecclesiastical state, to which he 
belongs, a moderate allowance should be given him for his 
support. 

1877. We have just said that the withdrawal of vindica 
tive punishments does not necessarily follow upon the 
amendment of the delinquent. However, it should be 
borne in mind that the Church s mission or end is to save 
souls. Consequently, even when she inflicts vindicatory 
punishments, she aims not merely at vindicating her laws 
and upholding her social order, but also at reforming the 
delinquent. Hence it may be said that all her punishments 
partake more or less of a medicinal character. Therefore, 
if the delinquent repents, the Church or the ecclesiastical 
judge remits even vindicatory punishments, either wholly, 
or at least in great part, unless the enormity of the offence 
or the greatness of the scandal demands otherwise. 2 

1878. This is also very beautifully stated by the Third 
Plenary Council of Baltimore : " Semper enim sumus parati 
eosdem (aberrantes), dummodo de insipientia sua dolentes 
cordique patris confidentes in domum paternam redeant, 
brachjis apertis recipere, eisque jura fratris junioris restau- 

1 Cap. 53 de app. (ii. 2) ; Glossa, ib. v. subtrahuntur; Kober, Excom., pp. 350,. 

355- 
3 Sanguineti, Tnst., pp. 459, 400; Schulte, K. K. R., vol. ii., p. 387. 



IO4 Support of Stispcndcd Ecclesiastics. 

rare, gaudentes quod filius qui mortuus erat revixerit et 
qui perierat inventus sit. (Luc. xv. 24)." * 

^79. Q. From what source is the above support to be 
taken, also in the United States ? 

A. From the income of the benefice, parish, or office of 
the delinquent, in the case of one suspended from benefice, 
or excommunicated. In the case of one dismissed or 
deposed, it is taken from the revenues of the parish or 
office of the person dismissed, where these revenues are 
sufficient ; otherwise from other diocesan resources. It 
may be asked, whether in the United States, where the 
income of the parish or office is not large enough to provide 
this support, it may be taken from the taxes and alms 
which are collected for dispensations from the banns 
and impediments of marriage, or from other sources of a 
similar kind ? There is certainly nothing in the law of the 
Church which forbids it. By the Sacred Canons, these 
taxes and alms are to be applied exclusively to pious and 
charitable uses. Now, both by the letter and spirit of the 
law of the Church, the support of indigent erring Ecclesi 
astics is pre-eminently a charity and a pious use. 

1880. Finally we observe, from the rule laid down by 
which delinquent Ecclesiastics are to be provided with a 
moderate support, the Glossa 2 excepts the case of an 
Ecclesiastic suspended from benefice (a pari, if he is excom 
municated) who has an income of his own. Its words are : 
" Sed si tales suspensi a beneficio haberent partrimonium 
vel aliud unde vivere possent, tune ex beneficio nihil habere 
debent." 

1 Cone. PI. Bait. III., n. 72. 2 In cap. 25 de elect, (i. 6.), v. Admiserunt. 



CHAPTER II. 

TRANSFERS AS PUNISHMENTS. 
( Translatio pcenalis, translocatio.) 

1 88 1. Having in the preceding chapter explained dis 
missals (privatio parochice), we shall now dwell briefly on 
transfers in their capacity of punishments. 

ART. I. 
Nature and Division of Transfers. 

1882. Definition. By a transfer (translatid] is meant the 
change or removal of an Ecclesiastic from one church or 
position to another, made by authority of the Superior, for 
cause. l The main difference between a transfer and a dis 
missal is this : by the latter, an Ecclesiastic is deprived of 
his church or office without being at the same time 
appointed to another, while by the former, he loses indeed 
the old church or office, but yet is at the same time ap 
pointed to a new one. 

1883. Division. \\o\\ many kinds of transfer are there ? 
These: I. Administrative zu& penal. A transfer is adminis 
trative, when it is made by the Ordinary for reasons of 
utility or necessity, and therefore not for crimes. It is penal 
when it is made in punishment of offences. 2. Voluntary 
and compulsory, according as it takes place with or against 
the will oi the incumbent. A voluntary transfer is there 
fore equivalent, partly, to a resignation, since the incum 
bent freely gives up the old parish for the new, and partly 
to an appointment to a new church. A compulsory transfer, 

1 De Armelis, Prsel. 1. i., t. 7, n. I. 



\ 

1 06 Transfers as Punishments. 

however, partakes on the one hand of the nature of a dis 
missal, since by it the incumbent is deprived of his church 
against his will, just as by dismissal, and on the other, of the 
character of an appointment to a new church or office. 
3. Finally the transfer is either to an inferior or to a better 
church or office. 

1884. Q. How are transfers made? 

A. i. It is prescribed by the law of the Church that Eccle 
siastics shall not be transferred, especially against their will, 
except ior grave and sufficient cause of necessity or utility, that 
is, except where it is really necessary or evidently usefiiL * 
The particular causes which make a transfer necessary or 
evidently useful, and therefore render it lawful, are indica 
ted above, Vol. I., No. 362. Again, the law of the Church 
allows of transfers, also for crimes, in cases where there are 
no other causes of necessity or utility. 

2. These causes are to be legitimately established. * For, as 
Leurenius 3 teaches, when the law prescribes that an act 
shall be done for cause, the latter is not presumed, but 
must be proved or shown to exist. 

3. The transfer should, as a rule, be from an inferior to 
a better church or office. For a transfer from a better to an 
inferior church or office would belittle and reflect discredit, 
not only on the person transferred, but also on the better or 
higher office itself. 4 We say, as a rule ; for it is plain that a 
person can be transferred to a worse or lower office, when he 
is guilty of offences or neglect of official duties, and has 
thus made himself unworthy of the better or higher office. 

1 Can. 34 et 35, C. vii. Q. I ; Cap. Qutesitum 5 de rer. perm. (iii. 19^. Hence 
Leurenius says that, when transfers are made without grave cause, they are mnde 
in direct violation of the law of the Church, and should therefore be annulled by the 
Superior ad quern. (Leur., For. Benef., P. 3, Q. 855.) 

2 De Angelis, 1. c., n. 2; Leur., For. Benef., P. 3, Q. 855. 3 L. c. 
4 Cap. I et 4 de transl. (i. 7.); Santi, 1. c., 1. i., t. 7, n. 9. 



Transfers as Punishments. 107 

ART. II. 
Transfer of Irremovable Rectors also in the United States. 

1885. Q. Can the Bishop, also with us, transfer an irre 
movable Rector, against his will, from one parish to another 
of the same diocese, for reasons of utility and necessity, 
although the Rector is not guilty of crime ? 

A. We distinguish between the transfer to an inferior, 
and the transfer to a better or equal parish. Now, in the 
estimation of all mankind, the transfer to a worse parish or 
office is regarded as a humiliation and a disgrace. Hence it 
is looked upon by men as a grave punishment. Accordingly, 
it is the unanimous teaching of canonists that a transfer to 
a worse or minor place, inflicting, as it does, dishonor and 
also diminution of income, is placed on the same footing 
with dismissal proper or privatio, and can therefore be 
made only in punishment of delinquencies. See Vol. L, No. 
394, sixth edition. 

1886. Thus Permaneder teaches: " The transfer of an 
Ecclesiastic against his will from a better to an inferior 
benefice or office is to be regarded as a privatio or dismissal. 1 
Phillips also writes : " The transfer to a smaller benefice or 
office is strictly a vindicative punishment or pocna vindica- 
tiva." z The Holy See has also repeatedly declared that 
transfers to inferior parishes or offices are punishments, and 
consequently imposable only for crime and by trial. 3 Con 
sequently the Holy See always commands the Bishop to 
give a Rector who is transferred against his will for causes 
which are not crimes a parish that is better than or at least 
equal to the former in all respects. 

1 Permaneder, 1. c., pp. 442, 443. See also Walter, 239, p. 469 ; Phillips, 
Comp., 87. iii. and 188. 

2 Phillips, Comp., 188 and 87 iii.; cf. Permaneder, p. 442. 

3 S. C. C. 26, Apr. 1871 ; S. C. C. 22 Martii 1873 ; cf. Analecta J. P. anno 1875, 
p. 607 and p. 880. 



io8 Transfers as Punishments. 

1887. But can the Bishop, also with us, transfer an irre 
movable Rector, against his will, to a better parish, or to one 
at least equally as good as the former, for grave reasons of 
utility or necessity, even though the Rector is not guilty of 
crime? There are two opinions, one affirming, the other 
denying. Those canonists who hold the negative, contend 
chiefly that such transfer is totally repugnant to the privi 
lege of irremovability which these Rectors possess, and by 
virtue of which their parish can be taken away from them, 
against their will, whether by dismissal or transfer, only for 
the specific crimes and by the form of trial laid down in 
law, and therefore not for reasons of utility or necessity 
which imply no crime on the part of the Rector. * 

1888. Those who hold the affirmative and their opinion 
seems the more common opinion maintain that the right 
of irremovability is not to be stretched so far as to redound 
to the evident and grave detriment of the Church and souls, 
and therefore does not exclude compulsory transfers when 
they are required by most urgent and grave reasons of neces 
sity and utility, even though the Rector to be transferred is 
not guilty of crime. 2 

1889. However, these canonists teach at the same time, 
i. that not every grave reason of necessity or utility is suf 
ficient for such transfer, but that it is necessary that the 
Rector should have become useless in his parish, v.g., be 
cause of the hatred or ill-will of the greater number of the 
parishioners and that, therefore, the transfer is not simply 
useful, but imperatively necessary. 3 

I g 9 o. 2 . That the existence of these urgent and grave 
causes must be established beyond a reasonable doubt, and 
that by a proper investigation put on record, so that it may 
appear ex actis, whether there is cause. For if the Bishop 

1 Cf. Walter, 239, p. 479. 

2 De Brabandere, Jur. Can. Comp., vol. i., p. 349. Brugis, 1882. 

3 Tb . nrg. can. 6, Dist. 74; Cf. Pierantonelli, 1. c., p. 208. 



Transfers as Punishments. 109 

is unable to prove the existence of these reasons before 
the Holy See, to whom the person removed has recourse, 
the transfer will be revoked and the Rector reinstated in his- 
parish. The reason is, that, unless the Bishop can show 
clearly that he acted from sufficient motives, the presump 
tion will be that he was animated by unjustifiable motives, 
namely by ill-will, malice, or other personal feelings ; or, as 
the canons say, that he was influenced, nou sanitate consilii, 
sed invidia et amentia .* Pierantonelli holds that irremovable 
Rectors can be transferred against their will, even though 
it be to a better parish, only by a formal canonical trial, or 
by a canonical summary trial, where the solemn one cannot 
be given. 2 

1891. 3. That the incumbent should be induced, if pos 
sible, to consent freely to the proposed transfer : for to a 
person willing all is easy ; to one unwilling, everything is 
impossible. It is not likely that an Ecclesiastic, transferred 
against his consent, will labor with fruit or alacrity in his 
new field. Hence such transfer would benefit neither the 
new church, nor the person transferred. And yet it is only 
for the purpose of benefiting either the Church or the 
incumbent that a transfer is allowed. 3 

1892. 4. That it shall clearly appear that the church to 
which the incumbent is transferred is really better than or 
at least as good as the former, both in honor and income, so 
that the Rector transferred will not suffer in his honor or 
revenues. 

1893. 5. Finally, that, even where strong and urgent 
reasons of necessity demand a change, v. g. y where a 
Rector has alienated the good will of the majority (not 
merely of a few) of his parishioners, v. g., by indiscreet 
zeal, by imprudence, and harsh temper, the transfer cannot 

1 Can. 7, 8, Dist 74. 2 Pierantonelli, Praxis fori eccl., p. 109. 

3 Pierantonelli, 1. c., pp. 108-109. 



1 10 Transfers as Punishments. 

take place, l where the evil calling for the transfer can be 
remedied by other means, v. g., by the appointment of an 
assistant to aid the Rector. 2 

1894. From this it will be seen that, even in the opinion 
of those canonists who teach that irremovable Rectors can 
be transferred against their will to a better or equal parish, 
for reasons of necessity or utility, and not merely for crime, 
this compulsory transfer is hedged in with so many condi 
tions and limitations that, practically speaking, it is not safe 
for a Bishop to make such a transfer, except for crime and 
by trial. Pierantonelli, 3 as we have seen, expressly teaches 
that the regular canonical trial (with us, the trial as out 
lined in the Instruction Cum Magnopere) must precede all 
involuntary transfers of irremovable Rectors. 4 We need 
not add that the principles here laid down respecting the 
transfer of parish priests who are canonically irremovable 
apply fully to our irremovable Rectors. For they enjoy the 
right of irremovability in the same manner as canonical 
parish priests proper. See above, Vol. L, Nos. 394 sq. ; Nos. 
643 sq., sixth edition. 

ART. III. 
Transfer of Removable Rectors, also in the United States. 

1895. Q. How can Rectors with us, who are amovibiles, be 
transferred by the Ordinary, against their will, even to an 
inferior mission or office. 

A. The Sacred Congregation de Propaganda Fide, in a 
recent important decision for the United States given 
March 18, 1887, answers thus: 5 "Cum vero agatur de 
translatione Rectoris (qui est amovibilis) ab una Missione 
ad aliam aut ad aliud officium etiam inferius, Ordinarii non 

1 Leur., For. Benef., Q. 867; De Brabandere, 1. c, vol. i, p. 350. 

2 Arg. Cone. Trid., sess. 21, c. 6 de Ref. 3 L c., p. 109. 

4 Cf. Walter, 1. c., p. 469. 5 See the text of the entire decision in the Appendix. 



Transfers as Punishments. 1 1 1 

tenentur ad canonici processus instructionem ; opus est 
autem ut hoc fiat graves ob causas, et habita meritorum 
ratione juxta dispositionem Concilii Plenarii Baltimorensis 
III. Tit. II., Cap. V., 32. Si in casu translationis fiat 
recursus ad S. Congregationem, S. Congregatio remittet 
recursurn ad Metropolitam, vel si agatur de Metropolita, 
ad Metropolitam viciniorem." 

1896. Accordingly, I. a grave cause is required. This is 
in harmony with the entire legislation of the Church. For, 
as we have seen, the Sacred Canons enact that Ecclesiastics 
who hold offices in the Church, even though they are 
amovibiles, and even though they are not Rectors of souls, 
shall not be transferred, especially against their will, 
without grave and sufficient cause. While this applies to 
all Ecclesiastics who hold offices, it applies with peculiar 
force to a Rector of souls, who should know his people, be 
a father to them, and who should therefore be changed or 
transferred as little as possible. See our New Procedure, 
Nos. 594, 595. 

1897. 2. When Rectors who are amovibiles are transferred 
for causes of necessity or utility, which are not crimes, the 
transfer is to be made in such a manner as not to inflict 
dishonor, humiliation, disgrace, pecuniary loss, or other 
grave injury upon the person transferred. Now, in the 
estimation of all mankind, a transfer to a worse or inferior 
place is regarded as a humiliation and a disgrace, just as the 
transfer to a better place is looked upon by all as a promotion 
and an honor. Moreover, the transfer to a worse place natu 
rally brings with it also a decrease of income ; for the smaller 
the place is, the smaller will be the salary or perquisites 
of its incumbent. Now, to inflict disgrace and pecuniary 
loss is a punishment, and should, as a rule, be imposed only 
for offences which make a person unworthy of his reputation, 
and of the esteem of others. Consequently a removable 
Rector, also with us, should, as a rule, be transferred to an 



H2 Transfers as Punishments. 

inferior mission or place only in punishment of delinquen 
cies. See our New Procedure, No. 596. 

1898. Again, as a transfer to a better place is considered 
by all an honor and a promotion, and is therefore coveted by 
them, it should naturally be made as a reward for merit, 
namely as a reward for virtue, learning, valuable and long 
services rendered, fidelity and ability in the discharge of 
duties. In like* manner, the transfer to a minor place, 
whether as to honor or income, is looked upon by all men as 
a humiliation, and is therefore greatly dreaded by them. 
Hence it should naturally be made as a just desert or punish 
ment for demerit, that is, for offences, or grave negligence, 
or culpable inability in the discharge of duties. This is 
implied by the words habit a meritorum ratione in the above 
decision of the Holy See. See above Vol. I., Nos. 39$ sq., 
sixth edition. 

1899. It is also in accord with God s own way of acting, 
as expressed in this beautiful passage of our Saviour : 
" Euge serve bone et fidelis : quia in pauca fuisti fidelis, 
supra multa te constituam." * It is also in harmony with 
the natural feelings and inborn sense of justice of all 
mankind. Everybody feels instinctively that promotion or 
transfer to a higher or better office is a deserved reward 
for merit ; and that a transfer to an inferior place is a just 
punishment for demerit, or crime. 

i goo. 3. The above causes, whether of utility or necessity, 
or of crime or demerit, calling for the transfer of a remov 
able Rector against his will, must be legitimately established. * 
This is plainly indicated by the above decision, when it 
allows of recourse to the Holy See against the transfer. 
This follows also from the principle laid down by all 
canonists, that, where the law requires a cause, the latter is 

1 Matt., xxv., 23. 

* De Angelis, 1. i., t. 7, n. 2; id., 1. i., t. 28, n. 7; See also a very important 
case decided by the Holy See, in the Acta S. S., vol. iii., p. 512. 



Transfers as Punishments. \ \ 3 

not presumed but must be proved. Consequently, as Leure- 
nius teaches, it is necessary that the Ordinary, before 
making the transfer, should make a causes cognitio, that is, 
a careful investigation, and thus obtain proof, in order that it 
may appear ex actis that there are really good and sufficient 
reasons for the transfer. For, continues Leurenius, l the 
mere assertion of the Superior that there are such causes is 
not to be believed by the Superior to whom the person 
transferred has recourse. In fact, canonists say that, unless 
the Ordinary clearly proves the existence of grave and 
sufficient causes for the compulsory transfer, also of re 
movable Rectors, the presumption will be that he acted 
from personal motives, in which case the transfer will 
always be annulled by the Holy See. 2 However, the 
existence of the cause need not be established by a canon 
ical trial, as the above decision of the Propaganda expressly 
states. 

1901. It may perhaps be objected, here, that the above 
teaching appears to be in direct contradiction with the 
power of the Ordinary to remove or transfer, at will ad 
nutumSi Rector who is amovibilis. The objection, however, 
does not hold. For the Holy See has frequently decided 
that the clause ad nutum means, not an arbitrary or despotic 
power, that is, not a power to remove or transfer without 
sufficient cause, but the arbitrium boni viri. 3 Now the will 
of a good man is that which is directed by reason, justice, 
and equity. 4 The power to transfer or dismiss removable 
Rectors is a limited and not an absolute power. 5 

L. c., q. 855. 2 Ib. 

3 Pallotti, Coll. v., appellatio, Art. I., n. 240; Acta S. S., vol. 18, p. 74. 

4 De Angelis, 1. i., t 28, n. 7. 6 Acta S. S., vol. iii., p. 506 sq. 



CHAPTER III. 

DISMISSAL COMBINED WITH DISQUALIFICATION FOR OFFICES, 

(Depositio^) 

ART. I. 
Character of this Punishment. 

1902. Deposition is a canonical punishment by which an 
Ecclesiastic is forever deprived of his office or benefice and 
of the right to exercise the functions or power of his ordo. 
We say, forever : for, as we have seen, l deposition not only 
deprives one of the benefices or offices which he actually 
holds, but, moreover, disqualifies him to obtain other offices, 
benefices, or dignities in future. It has, moreover, infamy 
or public disgrace annexed. This punishment, which, 
as is manifest, can be inflicted only on Ecclesiastics, is 
frequently mentioned by the older canons of the Church, 
in these or similar terms : " Deponatur ab ordine, ab officio, 
a presbyteratu." In former times it was imposed more 
frequently than now ; in fact, at the present day, it is but 
very rarely inflicted, simple dismissal coupled with 
perpetual suspension usually taking its place. 3 

ART. II. 
Formalities. Duration. 

1903. The punishment of deposition is perpetual and irre- 
missible in the sense that the Ecclesiastic so punished, has 

1 Supra, vol, i., n. 401, sixth edition. 2 Can. Eum qui 40, c. 7, q. i. 

3 Stremler, 1. c., p. 35. 



Dismissal Combined with Disqualification for Offices.i 15 

no right, even after he has done full penance, and amended, 
to be pardoned or released from it. The Superior, 
however, or Bishop may reinstate him, provided he be truly 
penitent, and provided the crime was not an atrocious one, 
such as wilful murder, * or the consecration of a person as 
Bishop who was not appointed. 2 We say, the Bishop may ; 
for he is never obliged to do it. During the vacancy of the 
Bishopric, the chapter or its vicar may also grant the 
pardon or re-instatement. Deposition does not deprive a 
person of the privileges of the Ecclesiastical state. 

1904. As deposition is at present scarcely ever imposed, 
we shall not expatiate on the crimes for which alone it can 
be inflicted and on the canonical trial which is required. 
Suffice it to say that deposition is, after degradation, the 
greatest punishment of the Church. Hence what we have 
said above, in speaking of dismissal, regarding the necessity 
of crime and previous trial, applies with much greater force 
to deposition. It can be imposed only for crimes which are 
enormous, give great scandal, and are expressly stated in 
law, such as wilful murder, public concubinage, etc. 3 

1 Can. Minor 4, Dist. 5. 2 Can. 7, c. 2, q. 3; Miinchen, 1. c., p. 146. 

3 Stremler, 1. c., p. 36. 



CHAPTER IV. 

DEGRADATION OF ECCLESIASTICS. 
(Degradatio^) 

ART. I. 
Nature and Effects of this Punishment. 

1905. Degradation is a canonical punishment by which 
an Ecclesiastic is wholly and forever deprived of the exer 
cise of the power of the ordo (the indelible character of 
order remaining, of course), and also of all office, dignity, 
and benefice, by a solemn sentence of the judge, and is 
reduced to the state of a layman, losing all ecclesiastical 
privileges, namely fori and canonis, and given over to the 
secular arm. In a few words, therefore, as we have said, 1 
degradation is not only a deposition, but also the expulsion 
from the ecclesiastical state and the putting back into the 
lay state, and therefore the loss of all ecclesiastical priv 
ileges. 

1906. This punishment is justly and appropriately called 
degradation. For, what can be more degrading or disgraceful 
than to be reduced from the high rank of the priesthood to 
the level of the laity. It is not indeed to be imagined for a 
moment that the state of the laity is a degraded state ; on 
the contrary, it is in itself a state of the highest honor. 
But when a Christian has been raised from the lay to the 
ecclesiastical state, and is afterward expelled from it and 
put back among the laity, for gross crimes, every body will 
see that such a fall is an extreme degradation. 

1 Supra, vol. i., n. 401, sixth edition, 1887. 



Degradation of Ecclesiastics. 1 1 7 

1907. Degradation is twofold : verbal, which consists in 
the sentence itself of degradation ; real or actual, which is, 
so to say, the execution of the verbal degradation. They 
differ therefore from each other simply as the commence 
ment and completion of one and the same thing. * 

1908. The verbal degradation does not ipso facto deprive 
one of the privileges of the ecclesiastical state ; the real or 
actual does. Again, one who is verbally degraded may be 
re-instated by the Bishop ; one who is actually or really, 
only by the Holy See. A person who is degraded remains 
bound by the vow of chastity, if he is in sacred orders, and 
consequently cannot contract marriage validly. He can 
validly absolve in case of necessity. 

1909. Degradation can be inflicted only for enormous 
crimes, and even then only when they are expressly and 
clearly designated as punishable with degradation. More 
over, as this punishment is the greatest and severest inflic 
ted by the Church on Ecclesiastics, it can be resorted to 
only as the very last means, and after all the other milder 
punishments have been applied in vain. Thus Pope Celestin 
III. says: " Quod si clericus. . . in homicidio fuerit depre- 
hensus legitime, atque convictus, ab ecclesiastico judice 
deponendus est. Oui si depositus incorrigibilis fuerit, 
excommunicari debet; deinde, contumacia crescente, anathe- 
matis mucrone feriri ; postmoclum vero, si in profundum 
malorum veniens (hsec omnia) contempserit, cum ecclesia 
non habeat ultra quid faciat, ne possit esse ultra perditio 
plurimorum, per saecularem comprimendus cst potestatem." 1 
As degradation is at present rarely, if ever, inflicted, we 
deem it unnecessary to enumerate the various crimes for 
which the law decrees it. 

1 Stremler, 1. c., p. 37. 2 Cap. 10. (II. I.) 



1 1 8 Degradation of Ecclesiastics. 

ART. II. 

Manner of inflicting it. 

1910. Q. By whom and how can degradation be inflicted 
at present ? 

A. Formerly, degradation, even though but verbal, could 
not be imposed upon a Bishop save by twelve Bishops, nor 
upon a priest except by six Bishops ; nor upon a deacon 
save by three Bishops. At present, however, the Bishop 
can alone, either personally or through his Vicar General, 
deputed to that effect, impose verbal degradation ; and, sede 
vacant e, the Vicar-Capitular can do it. As to real degrada 
tion, the old law has been changed somewhat, so that now, 
according to the Council of Trent, Sess. 13., C. 4 de Ref., the 
Bishop, instead of being bound to have six or three other 
Bishops, as above specified, can inflict it with a like number of 
mitred abbots, or, if they cannot be had, of other persons con 
stituted in ecclesiastical dignity, who are of weight by their 
age, and recommended by their knowledge of canon law. * 

1911. These priests or mitred abbots are not merely to 
give their advice ; they are associate judges, and conse 
quently have both a deliberative and a decisive vote in the 
trial and sentence. According to many canonists, more 
over, their unanimous, not merely majority vote is required 
for degradation. 2 

1912. Finally We must observe that, at the present day, 
degradation, verbal or real, like deposition, is scarcely ever 
resorted to, dismissal or privation taking its place. In fact, 
real degradation is no longer practicable. For it consists 
chiefly in handing the offender over to the secular power 
for punishment. Now, at present, secular governments act, 
in these matters, altogether independently of the Church, 
and do not await her action, but proceed at once to punish. 
Ecclesiastics, when they offend against the law of the land. 

1 Cone. Trid., sess. 13, c. 4 de Ref. 2 Arg. cap. 3 de sent et re jud. 



CHAPTER V. 

INFAMY AS A CANONICAL PUNISHMENT. 

(Infamia.) 

ART. I. 
True Idea of Canonical Infamy. 

1913. Infamy (infamia), in general, means public disgrace 
or the total loss of good name. Here it means not any and 
every loss of good name, but only that bad reputation 
which is accompanied with public scorn, contempt, and skamc. 
A person may become infamous in two ways : first, by the 
disposition of the law in our case, of the Sacred Canons 
namely where the law or the sacred canons declare that a 
person committing certain heinous, base, and shameful 
crimes shall be regarded as infamous in the eyes of the 
law, and as such excluded from ecclesiastical offices and 
dignities. 1 Second, by his very actions, that is, by his low, vile, 
and disgraceful life and conduct, which bring upon him the 
loathing and contempt of others, so that he is looked upon 
by others, not only as bad, but moreover as base, mean, 
and contemptible, and that without any enactment of the 
law to that effect. 2 

1914. The first is called infamy of law (infamia juris] ; the 
second, infamy of fact (infamia facti). In both kinds of 
infamy, the crime or action that produces them is one that 
is not only bad, morally speaking, but moreover base and 
shameful, so as to produce in others, who are right-minded 
for there is evidently no question of the opinion of people 

1 Schmalzg., 1. 5, t. 37, n. 165. 2 Miinchen, 1. c. vol. ii., p. 119. 



1 20 Jnjdmy as a Canonical Punishment. 

who are themselves bad and infamous not only dislike, 
but moreover loathing, contempt, and abhorrence. 

1915. The infamy of fact, as Stremler 1 remarks, depends 
somewhat on the ideas, customs, and manners of the people 
and times. Thus an action may be looked upon as infamous 
by the people at one time and not so at another. Again, 
it may be contracted even by one innocent of the crime 
imputed to him; v. g, where a person, though innocently 
calumniated, is nevertheless unable to show his innocence. 

1916. The infamy of the law, as we have seen, is that 
which is decreed by the law or Sacred Canons for vile and 
base crimes. We say, vile and base crimes ; for the law does 
not impose infarc^ for every crime, but only for those 
which are of a shameful kind. 2 Now the law of the Church 
enacts that some crimes shall produce infamy ipso facto, 
that is, by the very fact of their commission ; others, 
only upon juridical conviction and sentence. Now, what 
are the crimes, for which the law of the Church inflicts 
infamy ipso facto! All those crimes for which the civil, 
that is, the Roman law imposed infamy ipso facto, except 
where the canon law expressly ordains the contrary. Thus 
the canon Omncs, 6, q. i, says: " Omnes vero infames 
dicimus, quos szeculi leges infames appellant." Now the 
Roman law imposed infamy ipso jure for such crimes as 
keeping bad houses, usury, and others which are given by 
Reiffenstuel. 3 

1917. We say, the Roman law; for, as Stremler 4 well 
observes, this rule cannot be applied, at least generally 
speaking, to the civil or secular laws of the present day. 
For, by a deplorable derangement of modern ideas, some of 
the secular laws of our times designate as infamous certain 
actions which can never become even criminal in the eyes 
of the Church. Yet, in many cases, the infamy decreed by 

1 L. c., p. 42. 2 L. 7 ff. de publ. jud. (48, I). 

3 L. 5, t. 37, n. 55. L. c., p. 43. 



Infamy as a Canonical Punishment. 1 2 1 

our civil legislation is based upon just motives, and there 
fore would seem to obtain also in the eyes of the Church. 

1918. The Sacred Canons, besides enacting that the above 
infamy of the civil law shall also hold in the Church, have- 
also directly decreed that infamy shall be contracted ipso- 
facto for certain crimes. The latter are thus enumerated in 
the canon cum Infames 17, C. 6, Q. i : " Infames esse eas per- 
sonas dicimus, quag pro aliqua culpa notantur infamia, id est, 
omnes qui Christianas legis normam abjiciunt, et statuta 
ecclesiastica contemnunt, similiter fures et sacrilegos et 
omnes capitalibus criminibus irretitos ; similiter et inces- 
tuosos, homicidas, perjures, raptores, maleficos, veneficos, 
adulteros : qui fratres calumniantur aut accusant et non 
probant," etc. 

We observe here that the infamy which the Church 
annexes ipso facto to the above crimes is not contracted 
unless the crime is notorious. According to Stremler, this 
notoriety must be established either by a declarative ju 
dicial sentence, or by a juridical confession of the guilty 
person, or by juridical proof of the crime. 1 That the crime 
must be notorious is plain. For infamy is the bad opinion, 
mingled with scorn and contempt, entertained by a number 
of persons, and consequently cannot, by its nature, exist 
where the crime is occult. 2 

1919. What are the crimes that produce infamy only per 
sententiam judicis, that is, not ipso facto, but only upon 
judicial conviction and sentence? Infamy is produced, not 
by every crime of which a person is convicted, but only 
by those crimes that are styled public (crimen publicuui}, such 
as forgery, adultery, robbery, theft, etc. 3 Thus the Roman 
law, as adopted by the Church, says : " Infamem non ex 
omni crimine sententia facit, sed ex eo quod judicii publici 
causa habuit ; itaque ex eo crimine, quod judicii publici non 

1 Stremler, 1. c., p. 42. 2 Schmalzg, 1. 5, t. 37, n. 166. 

:J Reiff., 1. 5, t. 37, n. 38. 



122 Infamy as a Canonical Punishment. 

fuit, damnatum infamia non sequetur." * To contract this 
infamy, therefore, two things are requisite: i. a public 
crime, as explained ; 2. juridical conviction thereof, and 
condemnation. The infamy in the case is not annexed to 
the juridical proceedings, but to the crime. 2 

ART. II. 
Effects of Infamy of Law or Fact. 

1920. Q. What are the effects of infamy, whether of law 
or of fact ? 

A. i. Both the infamia juris and the infamia facti are 
a canonical disqualification (inhabilitas) for ecclesiastical 
offices, dignities, and benefices. The law of the Church 
says: " Infamibus portse non pateant dignitatum." Hence 
persons who are infamous are canonically incapable of being 
appointed to the above offices. The reason is, that offices 
and dignities are the reward of merit, and therefore should 
not be conferred on criminals. If a person, infamous by 
law, were nevertheless appointed to an ecclesiastical office, 
the appointment would be ip so jure null and void, at least in 
foro externo. Nay, those who have contracted the infamia 
juris are even to be deprived of the offices and benefices 
which they actually possess; 4 a judicial sentence, however, 
is required for this deprivation. We say, infamia juris ; 
for those who are under infamia facti cannot indeed be 
appointed to offices, but they do not lose those which they 
already hold. 5 

JQ2I. 2. Both those who are infamous by law, and those 

who are infamous by fact, are deprived of certain rights and 
privileges; that is, they cannot act as judges, advocates, 

L. 7. ff. de publ. jud. (48- i). 2 Munchen, 1. c., vol. ii., p. 123. 

s Reg. 87 in 6 ; 1. 2, C. de dignit. (12. \\ 
* L. 12, C. de dignit.; cap. ii de excess. Prael. 
& Reiff., de Reg. juris, reg. 87, n. 6. 



Infamy as a Canonical Punishment. 123 

assessors, witnesses, etc. 3. They become irregular. Hence 
those who are infamous by law cannot be promoted to or 
ders, nor exercise those which they have already received. * 
We say, infamous by law ; for those who are infamous by 
fact cannot, it is true, be promoted to orders, but they can 
exercise those which they have already received, although 
they should be suspended from office by the Superior, until 
they have either been absolved or condemned by a canonical 
trial. 2 From all this it will be seen that infamy is, properly 
speaking, a canonical punitive penalty, and as such always 
presupposes a grievous crime. 

1 Can. final, dist. 51 ; Schmalzg., 1. c., n. 173. 2 Stremler, 1. c., p. 45. 



CHAPTER VI. 

CANONICAL DISABILITY FOR ECCLESIASTICAL OFFICES AND 

BENEFICES. 

(Inhabilitas.) 

ART. I. 
Character of this Punishment. 

1922. Disqualification (inhabilitas) for ecclesiastical offices? 
dignities and benefices, is a canonical punishment by which a 
person becomes incapable and unfit to be validly appointed 
to any ecclesiastical office or benefice whatever, in such a 
manner that his appointment would be null and void ipso 
jure, and prior to any judicial sentence. * An instance of 
this canonical disability occurs in the cap. 2, and 15 dc Juzret. 
in 6 (v. 2), where Popes Alexander IV. and Boniface VIII. 
enact that heretics, their defenders, favorers, and believers, 
together with their children, even to the second generation, 
shall be excluded from all ecclesiastical offices and benefices. 
It is evident, therefore, that this incapacity is a very severe 
ecclesiastical punishment and therefore always presupposes 
a great crime. 

1923. Though often the effect of irregularity, this punish 
ment must nevertheless be carefully distinguished from it. 
Irregularity incapacitates a person directly for the reception 
and exercise of orders ; disability disqualifies him directly 
for appointment to ecclesiastical offices, benefices, and dignities. * 

1 Reiff., 1. c., 1. 5, t, 37, n. 20. 2 Munchen, 1. c., p. 163. 



Canonical Disability for Ecclesiastical Offices. 125 

ART. II. 
Effects of this Disability. 

1924. This punishment disqualifies a person radically and 
absolutely for ecclesiastical offices. Still it affects only 
those offices which a person has not yet acquired. Hence 
an Ecclesiastic who incurs this punishment cannot, it is 
true, be appointed to any office in future, but he does not 
lose those which he already possesses. In conclusion, this 
punishment is frequently the consequence of other canonical 
punishments, such as infamy, deposition, and irregularity. T 

1 Stremler, L c,, p, 32. 



CHAPTER VII. 

CANONICAL UNFITNESS FOR ORDERS AND THE ECCLESIASTI 
CAL STATE BY REASON OF CRIME. 

(Irregular it as ex delict 6). 

ART. I. 

Definition of and Difference between " Inhabilitas " and 
Irregularity. 

1925. In the preceding article we have explained the pun 
ishment of canonical disqualification for ecclesiastical offices 
and positions. In the present, we shall discuss the canonical 
disqualifications for orders and the ecclesiastical state. The 
exalted dignity of the sacerdotal ministry and of the eccle 
siastical state demands that all those should be excluded 
from it, who are in any way either unfit or unworthy, and 
who are calculated to bring disgrace upon it. Hence the 
Church, in order to provide for the honor, dignity, and 
eclat, which should, like a halo, surround the priesthood 
and render it respected and revered in the eyes of the 
whole world, has established certain rules, regulations, or 
qualifications, as a condition sine qua non of the licit admis 
sion to the ecclesiastical state, and to the reception of 
orders and the exercise of those already received. 

1926. All those who lack these requirements are said to 
be irregular (irregular es), that is, outside or beyond the rule 
(reguld] or conditions laid down by the general law of the 
Church for admission or membership among her ministers, 
and in consequence excluded from the list of Ecclesiastics. l 

1 Stremler, 1. c., p. 45 ; Miinchen, vol. ii., p. 137. 



Canonical Unfitness for Orders, etc. 127 

The direct object, then, of this canonical incapacity is to 
maintain the respect due to the ecclesiastical state. We 
say, the direct object ; for when the cause of the disqualifica 
tion lies in the crime and bad life of the person disqualified, 
the Church inflicts the disqualification also for the purpose 
of punishing the guilty party, and bringing him back to a 
sense of duty. Hence the incapacity arising from crime is, 
properly speaking, a vindicatory punishment. 

1927. To prevent confusion of ideas, let us clearly define 
the meaning and nature of this unfitness or irregularity as 
it is commonly called. The unfitness in question is a 
canonical hindrance or disability which disqualifies a person 
to receive orders and to perform the functions of the orders 
already received. * Let us explain this definition. We say, 
a canonical hindrance; because it is and can be inflicted only 
by the canon law, that is, by the common or general law of 
the Church, but not by a judicial sentence. Now the Pope 
alone or a general council approved by him can make laws 
for the entire Church. Hence, they alone can establish or 
impose this incapacity, and that only by an act of legislation, 
but not by way of a particular sentence. 2 The other terms 
of the definition will be set forth below, when we come to 
the effects of this incapacity. 

1928. A person may bring dishonor and opprobrium on 
the ecclesiastical state, either by reason of natural defects or 
deformity, bodily or mental, which, though not in any sense 
culpable, nevertheless inspire horror and disgust, or aver 
sion, in others ; or by crime or vicious conduct calculated to 
bring the sacerdotal state and ministry into disesteem and 
contempt. Accordingly, canonists divide the disqualifica 
tion in question into two kinds : one caused by natural 
defects ; the other produced by crime. The latter alone, as 
we have seen, is a punishment ; the former is simply a 

1 Reiff., 1. 5, t. 37, n. 63. 
2 Cap. i8de sent, excom. in 6; Schmalzg., 1. 5, t. 37, n. 67. 



1 28 Canonical Unfitncss for Orders and the 

legal prohibition. We shall here confine ourselves chiefly 
to the incapacity by reason of crime, as we are treating of 
punishments. We say, chiefly; for incidentally we shall also 
speak of the disqualification which arises from natural 
defects, since both these incapacities are so closely inter 
woven as not to be completely separable. 

1929. This canonical unfitness, whether by reason of crime 
or defect, may be partial or total. It is total when the inca 
pacity extends to the reception of any " ordo" whatever, and 
also to all exercise whatever of the ordines already received. 
It is partial when it disqualifies, v. g., only for the reception of 
orders, but not for the exercise of those already received. l 
When the disqualification proceeds from crime, it is always 
perpetual, that is, it can cease only by dispensation. But 
when it is caused by natural defects, it is temporary, that 
is, it lapses of itself, as soon as the defect passes away. 
When a person desires to be relieved of the disqualification 
by reason of defect, before the defect has really passed 
away, a dispensation is needed. 

ART. II. 
Effects of this Punishment. 

1930. Q. What are the effects produced by the canonical 
disqualification which springs from crime ? 

A. Before answering directly we premise that this unfit- 
ness never incapacitates for actions which are common to 
Ecclesiastics and laics, such as receiving the sacraments 
(except the or do of course), assisting at divine service, being- 
buried in consecrated ground, or associating with the 
faithful. The reason is, that it excludes temporarily from 
the body or membership of Ecclesiastics only, and therefore 
merely from the privileges of the ecclesiastical state? 

Schmalzg., 1. c., n. 70. - Schmalzg., 1. c., n. 89. 



Ecclesiastical State by Reason of Crime. 129 

1931. We now answer directly: The chief effects are 
incapacity for orders and for appointment to ecclesiastical 
offices; privation of ecclesiastical offices and benefices 
which a person already possesses, at the time he incurs the 
irregularity. We shall briefly explain each of these effects, 
under separate heads. 

i. Incapacity for Orders. 

1932. Irregularity disqualifies a person to receive orders or 
even the tonsure licitly. Hence it is distinguished from the 
inhabilitas, which, as we have explained, excludes directly 
only from ecclesiastical offices. The unfitness in question, 
moreover, disqualifies a person to exercise the functions of 
orders already received. For it may be contracted by one 
who has already received orders ; and then, if it proceeds 
from crime, it forbids the exercise of any function whatever 
of orders ; * if from defect, only those functions of orders 
which cannot be decorously or properly performed because 
of the defect. 

2. Incapacity to be appointed to Ecclesiastical Offices. 

1933. This is the second effect, though it is so only 
indirectly. For, as was seen, irregularity does not not fall 
directly on ecclesiastical offices, but only on the ordo. How 
ever, indirectly and consequentially, the unfitness in 
question, affects also ecclesiastical offices. Thus, by the 
very fact that it forbids or disqualifies a person to receive 
orders, it also, indirectly and as a necessary result, prohibits 
the acquiring of or appointment to an office which cannot 
be exercised without exercising the ordo. Hence a person 
who is irregular cannot be licitly (it is a probable opinion 
that he can be validly appointed) appointed to an ecclesias 
tical office, benefice, or dignity, 2 at least if the irregularity 

1 Cap. fin. de temp. ord. ; Cap. 21 de accus. 

2 Cone. Trid.,sess. 14, Cap. 7 de Ref. 



1 30 Canonical Unjitness for Orders and the 

is total ; for such total unfitness thrusts him completely 
out of the ecclesiastical state. The case, however, is different 
when it is but partial and is contracted by one already in 
orders, not by reason of crime, but of defect. * In this case, 
the irregular Ecclesiastic can be validly and licitly appointed 
to an ecclesiastical office, at least when its duties can be 
decorously discharged, notwithstanding the defect. 2 

3. Dismissal from Ecclesiastical Offices. 

1934. When and in what manner does the unfitness in 
question entail privation of the offices which a person has 
obtained before incurring the unfitness ? If the unfitness is 
caused by defect, v. g., arising from infirmity or accident, 
the Ecclesiastic thus disabled should not and cannot be 
deprived of his office or benefice, nor compelled to resign 
it by his Superior, lest, as Pope Innocent III., writing to the 
Archbishop of Aries, in 1210, Cap. Ex partc 5, (III. 6) 
says, affliction be added to affliction. But even where it is 
the result of crime, it does not ipso facto produce dismissal. 
The person who is thus irregular (ex delictd) should ask 
for a dispensation from the unfitness. 8 Meanwhile he can 
retain the office and receive its income ; however, he cannot 
exercise those functions of his office which require the 
exercise of the or do, but must discharge them through a 
third party. If he neglects to seek for a dispensation, he can 
and should be deprived of his office by the ecclesiastical 
Superior, upon due canonical trial. 

1935. We have just said that an irregular Ecclesiastic 
cannot exercise those functions of his office which require 
the ordo ; 4 for irregularity contracted by one who already 
holds an office does not forbid the exercise of those func- 

1 Arg. cap. 2 de cleric, cegr. - Schmalzg., 1. c., n. 92. 

3 Arg. cap. 5 de cleric, vel raonach. ; Cap. 6, 7, de cleric, excom. ministr.; Cap. 
10 de excess, prsel. 

4 Mtinchen, 1. c., vol. ii., p. 138. 



Ecclesiastical State by Reason of Crime. 1 3 1 

tions of an ecclesiastical office or benefice, which are not acts 
of the ordo, but purely acts of the officium, v.g., acts of pure 
administration or of external jurisdiction. 1 Consequent 
ly an Ecclesiastic who is irregular may inflict censures, 
make appointments to ecclesiastical offices ; parish-priests 
(with us, rectors) who are irregular may lawfully assist at 
marriages, and even lawfully give permission to others to 
administer certain sacraments, and perform ecclesiastical 
functions. 2 From what has been said, it will be seen that, 
while the canonical unfitness in question sometimes becomes 
the occasion of dismissal from office, and causes it indirect 
ly, yet it does not fall directly upon ecclesiastical offices or 
benefices. 

ART. III. 

Causes of this disqualification. 
i. Criminal causes. 

1936. For what causes is this canonical disqualification 
incurred when it is the result of crime ? The unfitness ex 
delicto is one of the heaviest vindicatory punishments of the 
Church. Hence it can be incurred only for crime and that 
for a crime which is very serious, external, consummated, 
and expressly stated in law as having irregularity annexed. 
Whether occult (not internal), though external, crimes pro 
duce irregularity is disputed. According to St. Alphonsus, 
the truer opinion is that which affirms that they do cause 
irregularity. 3 We say, and expressly stated in law ; for both 
the irregularity which is caused by crime, and that which 
proceeds from natural effects, is incurred only in cases 
clearly and distinctly laid down in the Sacred Canons. 

1937. Now what are the crimes for which the law of the 
Church decrees irregularity? These: i. Wilful and 

1 Miinchen, 1. c., pp. 153, 155. - Schraalzg., 1. c., n. 102. :! Craiss., n. 1766. 



132 Canonical Unfitness for Orders and the 

deliberate reiteration of baptism ; * 2. Apostasy from the 
faith ; 2 3. Furtive or improper reception of sacred orders; * 
4. The exercise of an ordo which a person has not yet 
received, v.g., when a mere deacon says Mass. 4 

1938. 5. The violation of censures ; in this case, however, 
a person incurs the disqualification only when he knowing 
ly, and wilfully, and culpably receives an ordo, or performs 
a function of an ordo already received, while he is under 
censure, namely of excommunication, suspension, and inter 
dict. 5 We say, an ordo ; for a person who performs an act 
of jurisdiction while he is under censure does not contract 
the unfitness. This the violation of censures is one of the 
principal sources of the incapacity in question. Of course, 
where the censure is null and void, though considered 
valid in the external forum, its violation does not entail 
irregularity in the forum of conscience. 6 6. Homicide and 
mutilation, provided the killing or maiming be voluntary 
and premeditated. 7 Here we observe that this unfitness 
for crime is always contracted ipso facto, though for the 
forum externum a declaratory sentence is generally re 
quired. 

2. Natural causes. 

1939. What are the natural defects which produce the 
canonical unfitness in question ? By reason of natural de 
fects, the following persons chiefly are irregular: (a) Those 
who are insane ; (b) those who are blind, lack the left eye, 
are dumb, epileptic, lame, leprous, cripples, hunchbacks ; 
those who have no nose nor ears, and persons of a very 
small and stunted stature ; (c) those who are illegitimate. 

1940. (d) Those who are illiterate. Canonists, however, do 
not agree as to what degree of illiteracy induces the disa- 

1 Tit. de apost. et reit. bapt. (v. 9). 2 Eod. 3 Tit. de eo qui fuit. (v. 30). 
4 Tit. de cler. non ord. ministr. 6 Tit. de cleric, excom. ministr. (v. 27). 

6 Stremler, p. 49. ~ Tit. de homic. (v. 12); Cone. Trid. , sess. 14, C. 7 de Ref. 



Ecclesiastical State by Reason of Crime. 133 

bility in question. Here we may remark that, speaking in 
general, the degree or grade of knowledge, as prescribed 
by the Council of Trent is : 1 (a) Those who are to receive 
first tonsure should know the rudiments of faith, and how 
to read and write ; 2 (&) those who are to be promoted to 
minor orders must at least understand the Latin language; 3 
(c) those who are to be ordained priests, must by a careful 
previous examination have been proved to be capable of 
teaching the people those things which it is necessary for 
all to know unto salvation, as also fit to administer the 
sacraments. 4 

1941. Canonists here also call attention to the utility and 
necessity of the study of canon law. The journal du droit 
canon., Apr. 1883, page 147, says: "The Church does not 
allow Ecclesiastics to be in ignorance of the Sacred Canons. 
Thus the canon Nulli 4, Dist. 38. decrees: Nulli Sacerdo- 
tum liceat ignorare canones. Again the can. Ignorantia I, 
Dist. 38, enacts : Sciant sacerdotes scripturas sacras et 
canones: " But when the Church addresses herself to Bish 
ops, continues the above Monthly, sh^e recommends this 
study to them with a zeal and an earnestness that are 
equalled only by the unbounded ardor with which she 
invites them to apply themselves to this study. 

1942. Another celebrated canonist writes that at the pres 
ent day the knowledge of canon law is more than ever 
indispensable. For, he continues, it is only by a thorough 
knowledge of ecclesiastical law, that arbitrary action will 
be avoided both on the part of the Superior and of the in 
ferior. It is only when the inferior as well as the Superior 
knows how far, where, when, and how he can proceed, that 
the authority of the one is respected, and the rights of the 
other are protected. Especially is this knowledge essential 

1 S. C. C. Buvgi S. Sepulchri 27, Feb. 1875. 

" Cone. Trid., sess. 23, cap. 4. de Rcf. :; Ib. cap. H de Ret. 

4 Cone. Trid., sess. 23, cap. 14 de Ref. 



134 Canonical Unjitness for Orders and the 

in order that the right steps may be taken in criminal and 
disciplinary proceedings and investigations. * 



ART. IV. 
Does Ignorance excuse from this Disability ? 

1943. Is it necessary, in order to incur the canonical 
incapacity in question, that a person should have a knowl 
edge both of the law forbidding the crime (\ve speak of 
irregularitas ex delicto, as the irregularitas ex defectn is cer 
tainly incurred by a person who is ignorant of the law or of 
the irregularity), and of the canonical disqualification an 
nexed to the commission of the crime? For the answer, so 
far as the knowledge of the law is concerned, we refer to 
No. 1710, where the principles involved in the question are 
fully set forth. For the answer, so far as the knowledge of 
the incapacity is concerned, see No. 1707, where the principle 
is laid down that ignorance merely of the punishment, 
when there is question of purely vindicative punishments, 
does not exempt from them. Now irregularity is a punitive 
punishment. Hence also it is the common opinion of can 
onists that the disqualification in question is contracted by a 
person who is unaware that it is annexed to the crime he has 
committed, and only knows that his offence is forbidden by 
the law of the Church. 

1944. We say, com mon opinion; for the contrary opinion, 
which holds that the incapacity is not incurred in the case, 
is probable according to Schmalzgruber, " Palao, Suarez, 
Sanchez, La Croix, and others. The chief reason upon 
which it is based is that the disqualification is a most severe 
punishment, which the delinquent is bound in conscience to 
execute himself, and before any declaratory sentence. Now 
it seems equitable that such a severe punishment should 

1 Schulte, K. K. R., vol. ii., p. 113. 2 L. c.. n. 108. 



Ecclesiastical State by Reason of Crime. 135 

not be incurred, except when the offender is fully cognizant, 
not merely of the law, but also of the punishment. 

1945. Here we remark, in passing, that all irregularities, 
whether they proceed ex defectu or ex delicto are incurred 
ipso jure, since they are always latce, never fcrcnda sententice. 
Consequently, when a person commits a crime which the 
law punishes with irregularity, he incurs, in foro interne, the 
irregularity ipso facto, and without any judicial sentence. 
We say, in foro interno ; for in foro externo no person is, 
generally speaking, regarded as irregular, until a declaratory 
sentence has been given to that effect. In other words, no 
person is considered irregular in the external forum, until 
he has been juridically declared irregular. * 

ART. V. 
How this Disability is removed. 

1946. Q. In how many ways is the unntness for orders 
and the ecclesiastical state removed ? 

A. In four: i. The unntness resulting from a passing 
defect or deformity ceases of itself, as soon as the defect 
passes away. Thus, if it proceeds from want of the pre 
scribed age for ordination, or of the requisite learning, or 
from want of good name (provided the want of reputation, 
that is, infamy, be onlyfacti, not juris ; for the infamy of law 
does not cease, save by dispensation) 2 it disappears of 
itself as soon as the proper age is reached, or the necessary 
learning attained, etc. 

1947. 2. Craisson 3 holds that the unntness which springs 
from crime and certain disqualifications arising from defects 
are taken away by baptism. But as Schmalzgruber well 
remarks, baptism does not, properly speaking, remove any 
irregularity or incapacity whatever, for the simple reason 

1 Stremler, 1. c., p. 46. * Can. 7, c. 2, q. 3. 



136 Canonical Unjitness for Orders and the 

that, prior to being baptized, a person is not subject to the 
laws of the Church, and therefore cannot contract any dis 
qualification. The infamy of fact, even though caused by 
murder, is the only irregularity blotted out by baptism. 1 

1948. 3. The unfitness arising from illegitimacy is re 
moved, though only as to the reception of orders, by solemn 
profession in a religious order. We say, though only etc. ; as 
a matter of fact, however, all religious orders have the 
privilege by which their religious, though illegitimate by 
birth, can be chosen prelates. 

1949 4. Finally, the disabilities of which we speak in this 
article are removed by dispensation or act of clemency of 
the Superior. Now, what Superior can remove disabilities? 
The rule is: " Omnis res, per quascunque causas nascitur, 
per easdem dissolvitur." 2 Now, only the Superior who is 
possessed of universal jurisdiction namely the Pope and 
general councils can establish an irregularity, and that 
only by a general law, not by a special command. Conse 
quently the supreme Pontiff alone can remove or dispense 
from irregularities, whether caused by crime or defect. 

1950. Bishops can do so only where this power is dele 
gated to them, but not by their own inherent or ordinary 
authority. The reason is, that these disabilities can be 
established only by the supreme authority in the Church, as 
we have seen. But a Bishop cannot relax the law of his 
Superior namely of the Pope or general council. 

1951. We say, only where tjiis poiver is delegated to them; 
now the Council of Trent 3 has authorized Bishops to dis 
pense in all cases of irregularities arising from a crime that 
is secret except that proceeding from voluntary homicide, 
and those crimes which have been already carried before 
the contentious forum. By secret or occult crimes, canon 
ists here commonly understand those crimes which, though 

1 Schmalzg., 1. c., n. iio. 2 Reg. I. de Reg. Jur. (v. 41). 
3 Sess. 24., c. 6de Kef. 



Ecclesiastical State by Reason of Crime. 1 3 7 

known to and provable by several witnesses, nevertheless 
have not yet become notorious, that is, known to the greater 
part of a place, neighborhood, or community, which should 
contain at least ten persons. 1 

1952. The power granted to Bishops, in this matter, by 
the Council of Trent, is possessed also by regular prelates, 
abbots, generals of orders, and provincials, and others 
having quasi-episcopal jurisdiction independently of the 
Bishop. The reason is that the power granted to Bishops 
in the Cap. 6 de Ref., sess. 24 of the Council of Trent is a 
favor, and hence should be extended to the prelates just 
mentioned ; for favors should be always liberally construed. 2 
But neither Bishops nor the other prelates can remove disa 
bilities arising from defects, except in the case of disability 
from illegitimacy and similitudinary bigamy. 3 

1953. Our Bishops in the United States (as a rule all 
Bishops of missionary countries), by particular law, that 
is, by special Papal indult, have power " Dispensandi in 
quibuscumque irregularitatibus, exceptis illis, quas vel ex 
bigamia vera, vel ex homicidio voluntario proveniunt ; et 
in his etiam duobus casibus, si prsecisa necessitas operari- 
orum ibi fuerit, si tamen quoad homicidium voluntarium, 
ex hujusmodi dispensatione scandalum non oriatur." 

1 Schmalzg., 1. c., n. 115, 116. 2 Ib., n. 121. 

3 Grandeclaude, torn, iii., p. 526. 4 Facult. Form. I., n. 2. 



SECTION II. 
Temporal and Corporal Vindicatory Punishments. 

CHAPTER I. 

VARIOUS KINDS OF THESE PUNISHMENTS. 

1954. Thus far, we have spoken of those vindicatory 
punishments which are of a spiritual nature. We shall 
briefly describe those of a temporal or corporal character. 
Of these, not a small number, that were formerly in vogue, 
have now gone completely out of use. Among these may 
be classed corporal punishments, i. e., whipping and flog 
ging, imprisonment, and exile in the strict sense of the 
term. l The chief punitive punishments of a temporal 
character which are still in use are pecuniary fines, assign 
ment to a monastery or house of retreat, and exile in a 
broad sense or mild form. 

ART. I. 

Pecuniary Fines. 

1955. By a pecuniary fine (mulcta pecuniarid) is here 
meant the payment of a sum of money which is imposed by 
the ecclesiastical judge, in foro externo, upon a person, in 
punishment of a crime committed by him. 2 From this 
definition it will be readily seen that we do not speak here 
of the payment of money imposed as a penance by the 
confessor, in the tribunal of penance, but only of those fines 
which are inflicted by the ecclesiastical judge, as such, and 
consequently only in foro externo and as canonical punitive 
punishments. 

Phillips, Lehrb., p. 396. 2 Benedict XIV., de Syn., 1, 10., c. 9., 11.3. 



Various Kinds of Temporal Punishments. 1 39 

1956. Of the Sacred Canons enacted prior to the Council 
of Trent, some enjoin, others forbid pecuniary fines in the 
ecclesiastical forum. Likewise the practice in the Church, 
prior to the Council of Trent, was not uniform on this 
head, some Bishops being in favor of, others opposed to 
the principle of imposing fines in punishment of crimes. 
However, the Council of Trent put an end to all uncer 
tainty in this matter. For in session 25, c. 3 de Ref. 
it expressly gives Bishops power to impose fines in certain 
cases. Here are the words of the Council: " Liceat eis 
(episcopis) si expedire videbitur, in causis ... ad forum 
ecclesiasticum quomodo libet pertinentibus, contra quos- 
dam, etiam laicos, per mulctas pecuniarias, quas locis piis 
ibi existentibus, eo ipso quod exactae fuerint, assignentur 
. . . procedere et causas definire." 

1957. This Council itself imposed pecuniary fines as 
punishments for crime both upon Bishops and inferior 
Ecclesiastics. Thus it decrees that Bishops who are absent 
from their see, without legitimate reason, shall incur the 
loss of a fourth part of one year s income ; 3 that concubi- 
nary Ecclesiastics shall first be ipso facto deprived of the 
third part of the fruits, rents, and proceeds of all their 
benefices whatsoever, and finally, if they remain incorri 
gible, of the benefices themselves. * 

1958. In what manner are these fines to be imposed ? 
Fagnani remarks correctly that they can be inflicted only 
by judicial sentence pronounced after due trial of the case, 
but not extrajudicially, i.e., not without trial. This applies 
to fines involving a considerable amount of money, but 
not to small fines. 

1959. When can fines be imposed by the ecclesiastical 
judge ? i. As a matter of course, in all cases where the law 
of the Church authorizes it, v. g., in the case of concubinary 

1 Cone. Trid., sess. 6, c. I. de Ref. 
2 Ib., sess. 25, c. 14 de Ref.; cf. Bened. XIV., 1. c., c. 9, n. 6. 



1 40 Various Kinds of Temporal Punishments. 

Ecclesiastics, as we have seen. 2. The Bishop can, in making 
diocesan statutes, annex a pecuniary fine, as an ordinary 
punishment to their violation ; he can also, as judge, inflict 
fines in cases where the law of the Church does not pre 
scribe an} 7 particular or ordinary punishment, but leaves 
the penalty to the discretion of the judge. a But where 
the law of the Church prescribes a canonical punishment 
for a crime, the ecclesiastical judge is not allowed to 
commute it into a pecuniary fine. Such a commutation 
would be regarded as immunity granted for money. 2 

1960. 3. Finally, in cases where the offence is not so 
great as to deserve spiritual punishments, such as censures, 
a pecuniary fine may be imposed. The Council of Trent * 
enacts that censures should not be inflicted rashly or for 
slight causes, lest they become more despised than feared, 
and produce ruin rather than safety. Hence it enjoins on 
all ecclesiastical judges, of whatsoever dignity they may 
be, that in all causes, criminal and civil, both during the 
proceedings or trial and in giving judgment, they abstain 
from ecclesiastical censures, as often as pecuniary fines 
can be imposed and collected ; and only when such fines 
cannot easily be imposed shall it be lawful for ecclesiastical 
judges to employ censures, provided, however, that the char 
acter of the crime so require, and that there be contumacy, 
and upon due trial. 4 

1961. What is to be especially avoided when these fines 
are imposed, is the desire of gain or making money by 
this means. Abuses of this kind seem to have occurred 
not unfrequently in former times. In order to cut off all 
temptation of perverting the ends of justice and of extort 
ing money, the Church has enacted that the Bishop or 
ecclesiastical judge can never appropriate these fines to 
his own uses ; nor can he employ them for the purpose of 

1 Cone. Trid.. sess. 25, c. 3 de Ref. 3 Arg. cap. Licet 3, de poenis (v. 37.) 

3 S -ss. 25. c. 3 de Rcf. * Stremler. p. 6l ; Crnis<., n. 6^5". 



Various Kinds of Temporal Punishments. 141 

paying the salary of his Vicar-General, or of the officials 
of his chancery or tribunal ; nay, he cannot apply the 
least portion of them even to the fabric of the Cathedral 
or the repairs of the Bishop s house ; nor can he allow 
any part of them to go to the treasurer of these funds ; but 
he must apply them exclusively to pious and charitable 
purposes, that is, to the poor, to hospitals, orphan asylums,. 
and the like. 1 These fines, moreover, should be deposited 
in the hands of a special treasurer, from whose accounts 
it shall clearly appear that they have all been applied to 
charitable uses. 2 

1962. Custom in the United States. Direct pecuniary fines 
are not in use with us. It is, however, the opinion of not a 
few of our ablest divines, that moderate pecuniary fines 
might sometimes be advantageously imposed instead of 
other canonical punishments, such as censures. In fact, it is 
apparent that, where a fine will obtain the desired result, 
recourse to censures is not laudable. 

ART. II. 
Ecclesiastical Imprisonment. 

1963. In former times there were ecclesiastical prisons, 
properly speaking, and the law of the Church authorized 
ecclesiastical judges to decree imprisonment, against Ec 
clesiastics and laics, for grave crimes, proven juridically, 
*>., by a formal trial. 3 At the present day, imprisonment 
proper is no longer, at least generally speaking, inflicted 
by ecclesiastical judges. Ecclesiastics who have been 
proved guilty of crime, instead of being imprisoned by the 
Bishop, are, also in the United States, sometimes sent to 
religious houses or other places of retreat, to do penance. * 



1 Cone. Trid., 1. c. 2 Bened. XIV., 1. c., 1. 10, C. 10. n. 5. 

Arg. cap. 15, de sent, excom. in 6 (v. II). Cf. Stremler, p. 63. 



142 Various Kinds of Temporal Punishments. 

1964. Q. What is the legislation of the Third Plenary 
Council of Baltimore on this head ? 

A. In harmony with the above teaching, the Council 
enacts : " Quo efficacius aberrantes in semitam rectam re- 
ducantur enixe commendamur, ex S. C. de Prop. Fide 
consulto, ut domus quasdam a religiosis viris regendse 
instituantur, ubi sacerdotes lapsi, qui spem fundatam con- 
versionis exhibent, pro tempore ab episcopo statuendo, 
vitam degant." (Cone. PL Bait. III., No. 77). 

ART. III. 
Exile in a Mild Form. 

1965. Exile, in the ecclesiastical sense of the term, consists 
in this, that an Ecclesiastic or laic who is guilty of crime is 
expelled from the diocese, and forbidden to return. Some 
times a person is banished merely from a particular city or 
locality, but not from the entire diocese. The Bishop or 
ecclesiastical judge may inflict this punishment, in order to 
cause scandals to cease, to oblige delinquents to break off 
their evil habits, to remove them from the occasion of sin, 
and, in general, to prevent a number of crimes, especially 
against morality. This punishment is still inflicted at times, 
though much more rarely than was the case formerly. 

1 Stremler, p. 63. 



PART IV. 

REPRESSIVE PUNISHMENTS WHICH ARE 
REFORM A TIVE. 

(Pcence medicinales, censurcz.) 

1966. Having spoken of the repressive punishments 
which are punitive, it now remains to treat briefly of the 
correctional or, as they are commonly called, censures. We 
shall first explain those properties which are common to all 
censures -, next the peculiar characteristics of each censure 
in particular. 

SECTION I. 
Reformative Punishments, in General. 

1967. Under this heading we shall discuss, in separate 
articles, the nature and the various kinds of the punish 
ments in question ; by whom and upon whom, for what 
cause, and in what manner they are inflicted ; what reasons 
exempt from them ; when and how a person who has in 
curred them is released from them. 



CHAPTER I. 

NATURE OF THESE PUNISHMENTS. 

1968. A reformative punishment (or censure, as it is 
commonly styled) is a spiritual and medicinal punishment, 
by which a person who is baptized, delinquent, and incor 
rigible, is deprived of the use of certain spiritual goods or 
benefits, by ecclesiastical authority, until he recedes from 



144 Nature of Reform Punishments. 

his incorrigibleness. * Let us briefly explain this definition, 
We say, a punishment ; for a censure is a privation of spirit 
ual benefits, and therefore inflicts pain and disgrace. Hence, 
like every punishment, it presupposes a crime ; for, as we 
have seen, there can be no punishment, where there is no 
guilt. 

1969. We say, secondly, medicinal; because, as has been 
shown, they are primarily and directly administered for 
the purpose of curing a person who is morally infirm, of 
bringing him back to a sense of duty, and causing him to 
break off his evil ways. They are spiritual medicines rather 
than punishments proper. Now medicines are given a sick 
person only as long as he is sick, and discontinued as soon 
as he is cured or on the fair way to recovery. 2 In like 
manner, these punishments, when inflicted upon a delin 
quent, 3 should be withdrawn as soon as he amends and 
becomes repentant. 4 Consequently, they should not be 
inflicted for a determinate period, v.g., for three months, 
since it is always understood, by virtue of the law of the 
Church, that they can last only as long as the obstinacy in 
sin continues, and should be withdrawn as soon as the 
amendment has taken place. 6 

1970. We say, moreover, incorrigible, for it is, as was al 
ready shown, the peculiar feature of these punishments 
that they not only presuppose a crime, but also incorrigi- 
bility or obstinate persistence in crime. Hence a person, in 
order to become liable to these punishments, must be not 
only guilty of crime, but must, moreover, persist in his crim 
inal course, after having been duly warned and admonished. 

1971. This warning (monitio canonica), which must precede 
the punishment, can emanate either from the law itself or 
from the ecclesiastical judge or Superior. Hence a person 

1 Schmalzg., 1. 5, t. 39, n. i; Bened. XIV., de Syn., 1. 10, C. I, n. I. 

2 Soglia, vol. ii., p. 561. * Stremler, 1. c., p. 173. 

* Supra, n. 1796. 5 Arg. cap. I. de sent, excom. in 6. (v. II). 



Nature of Reform Punishments. 145 

may become contumacious in two ways ; first, when he 
does not heed the warning of his ecclesiastical Superior, 
addressed to him individually and personally ; second, 
when he violates a law of the Church, with the full knowl 
edge of the law and of the censure annexed. For, in this 
second case the law itself is a standing warning to all. 
Here it should be observed that these punishments should 
be imposed only on persons who, though incorrigible, yet 
give hopes of amendment, but not upon persons who are so 
absolutely incorrigible as to preclude all hope of their re 
pentance. For medicines are not administered to patients 
who are beyond all hope of recovery. 

1972. We say, spiritual goods ; for, although the punish 
ments in question sometimes take away temporal goods, as 
happens, v.g., in suspension a beneficio, which strips a person 
of the salary or income of his office or benefice yet they 
do so only secondarily and indirectly. Primarily and di 
rectly, they extend only to spiritual benefits. Nor do they 
dispossess a person of all, but merely of certain spiritual 
privileges, namely of those which depend on the Church, v.g., 
the sacraments, public prayers, sacred functions. Hence 
they do not of themselves deprive a person of sanctifying 
grace. Thus it can happen that a person may be under 
censure, and yet be in the state of grace, v.g.> where the 
censure is imposed upon a person who is innocent. 



CHAPTER II. 

VARIOUS KINDS OF REFORM PUNISHMENTS. 

1973. There are three kinds of reformative punishments, 
namely excommunication, suspension, and interdict. * Ob 
serve that excommunication is the severest of all correctional 
punishments, since it dispossesses a person, for the time 
being, of all spiritual benefits depending on the Church, and 
therefore contains or combines in itself the effects of both 
the other censures. Hence, in the decretals, the censures 
of suspension and interdict are grouped and discussed 
under the one title de sententia excommunicatioms. 



ART. I. 
Reformative Punishments " a jure " and " ab homine" 

1974. Reform punishments are inflicted in two ways : (a} 
a jure, that is, by law, and (&) ab homine, that is by the 
proper Superior. These are technical terms. Let us explain 
them. A reformative punishment termed a jure is that 
which the law itself attaches to a crime. We take the 
word lazv here in its proper sense, that is as an enactment 
which has of itself a permanent and perpetual binding force, 
as contradistinguished from a mere command or precept, 
which is essentially of a temporary obligation and lapses with 
the death of the Superior by whom it was given. 2 Hence 
by punishments a jure we mean not only those which are 
contained in the common law of the Church, namely the 

* Cap. Quserenti, 20. de v. s. (v. 40.) 2 Konings, n. 98, 4. 



Various Kinds of Reform Punishments. 147 

Sacred Canons, and the decrees of Popes and (Ecumenical 
Councils, but also those which are enacted by Plenary and 
Provincial Councils, and by episcopal statutes made in 
diocesan synods. l The reason is, that the latter decrees, 
no less than the former, are real and true laws, though 
binding only in particular localities. For their binding 
force is not transitory, and does not cease with the death of 
the Superior by whom they were enacted, but is of itself 
perpetual, and they remain in force till lawfully abrogated. 

1975. On the other hand, a correctional punishment ab 
homine is that which is annexed by the proper Superior (ab 
homine) v. g., by the Bishop, to the violation of a precept or 
command, as contradistinguished from a law. Reformative 
punishments ab homine, like precepts, have no perpetual 
binding force. They cease to be of force, whenever the ju 
risdiction of the Bishop by whom they were made expires, 
that is, as soon as the Bishop dies, is removed, transferred, 
or resigns, though, if once incurred, they cease only by 
absolution. They are called forth only on occasion of 
peculiar and passing circumstances, and are intended to last 
as long as these peculiar circumstances exist. 2 

1976. Now reformatory punishments which are ab homine 
may be inflicted in two ways : (a) by way of a general 
precept, order, or command per sententiam gcncralem, v. g., 
when the Bishop, by reason of a certain crime which is 
very prevalent in his diocese, issues a circular letter, man 
date or precept, imposing censure on any one who shall 
commit the offence; (b) by way of a particular command or 
injunction per sententiam specialem laid upon one or more 
determinate persons, v. g., if the Bishop puts a person on 
trial for a crime, and upon conviction pronounces sentence 
inflicting censure upon him ; or also when he threatens a 
certain person or persons with censure, in case they persist 

1 Ib., n. 1661, 2. 2 Kober, der Kirchenbann, p. 51. 



148 Various Kinds of Reform Punishments. 

in their evil ways. The general precept, therefore, is ad 
dressed indiscriminately to all the subjects of the Bishop ; 
the particular, to certain individuals who are specified. l 
As will be seen, the reform punishments a jure bear a 
considerable resemblance to those ab homine per sententiam 
generalem. Both extend, not to a particular individual, but to 
all subjects in general ; both refer equally to future crimes 
committed after the enactment of the law or precept. * 



ART. II. 
Reform Punishments " ferenda " and " latce sentential 

1977. For a correct understanding of censures it is of 
great importance to distinguish between correctional pun 
ishments which are latce senteniice and those which are fe- 
rendce sentcntice. Censures latce sententice are those which are 
incurred in for o inter no, by the very fact of the commission 
of the crime (ipso facto), that is, the very moment the crime 
is committed, and without any intervention whatever of the 
ecclesiastical Superior or judge, and therefore without any 
sentence, even declaratory. 

1978. Correctional punishments ferendce sententice called 
also threatened censures are those which are incurred 
only by a formal and special condemnatory sentence of the 
proper Superior, pronounced after due previous warning 
and the prescribed trial. 

Now, by what marks can it be known whether these 
punishments are ferendcz or latce sententice ? As a general 
rule, it may be said they are latce sententice, when their 
wording is such as to show clearly that the law-giver wishes 
them to be incurred the very moment the crime is com 
mitted. * Such is the case (a) with phrases of the past or 
present tense, v. g. y excommunicamus; excommunicatus est or 

1 Gury Bailer., n, 933 adn. b. - Kober, 1. c., p. 50. 3 Kober, 1. c., p. 6l. 



Various Kinds of Reform Punishments. 149 

fuit; excommunico; suspenduntur; volumus aut jubemus esse 
excommunicatum, suspensuui, aut interdictum. (b) Where these 
phrases are used : ipso facto, ipso jure, sine alia scntentia. (c) 
Where the language is imperative, v. g., ineidat in excom- 
municationcm, maneat suspcnsns. 

1979. They are fcrcndtf sent entice, as a rule, when the 
words, in which they are couched, refer to the future, and 
therefore merely threaten them. Such phrases are, v. g,, 
txcommunicabitur, suspendetur; or if they require the inter 
vention of a third person, v. g., excommunicetur per episcopmn. 

1980. It has been objected by some canonists that 
punishments latce sent entice are opposed to the very law 
of nature. For it is repugnant, they say, to the natural 
feelings, that a person should be himself the executor of the 
punishments to which he has rendered himself liable. But 
it must be remembered that censures latce sent entice do not 
inflict any positive, corporal, or other external pain, but 
merely negative and spiritual ; they simply deprive a 
person of certain spiritual benefits; the person incurring 
them is passive ; the censure executes itself. 1 Moreover, 
it should be borne in mind that correctional punishments 
latce scntentice produce their effects ipso facto, i. c., without 
any judicial sentence, only in foro interno ; for in foro ex~ 
terno they do so only upon a declaratory sentence of the 
proper ecclesiastical judge, which must be preceded by 
a trial. We say, declaratory sentence, for no condemnatory 
sentence is needed, since the law itself, which inflicts the 
censure, condemns the offender. 

ART. III. 
General Remarks. 

1981. As we have seen, correctional punishments, should 

1 Kober. 1. c., p. 55. 



150 Various Kinds of Reform Punishments. 

not be imposed for any determinate time. For, as was 
shown, they are medicinal in their character, and should 
therefore last only as long as the spiritual sickness continues, 
that is, until the obstinate offender returns to better ways. 
They are consequently, by their very nature, indeterminate 
as to time. Their duration is commensurate with, and 
depends upon, the continuance of the offender in his 
incorrigibility. As soon as the latter ceases, the former 
should be withdrawn. Hence, in the definition of these 
punishments, we say that by them a person is deprived of 
certain spiritual benefits, until he recedes from his contumacy. 

1982. We said above, when inflicted as such ; for correc 
tional punishments namely suspension and interdict, but 
not excommunication may sometimes be imposed, not as 
correctional, but also as vindicatory punishments /^r 
modum pcena vindicative. * In the latter case, they follow the 
rules of other punitive punishments, and may be inflicted 
for a definite period, v.g., for three months, and, absolutely 
speaking-, without the previous canonical admonition, 
though not without a previous citation and trial. 

1983. Again, we remark, when a censure is invalid, it 
takes no effect whatever in conscience in for o inter no and 
need therefore not be observed in this forum, though 
sometimes it has to be conformed to outwardly or in foro 
externo, as we shall see, for the sake of shielding the 
authority of the Superior. Finally, we observe that sus 
pension and interdict only can be inflicted also as vindicative 
punishments ; excommunication never. 

1 Cap. 7 de elect; Cap. 48 (v, 39); Schmalzg., 1. 5, t. 39, n. 30; Reiff., 1.5, t. 39, 
n. 28. 



CHAPTER III. 

WHAT PERSONS CAN INFLICT THEM ? 

1984. Two questions are here proposed: first, who are 
competent, i. e., have power, to inflict correctional punish 
ments ; next, what conditions are requisite, in order that 
those who have this power, may exercise it validly and 
licitly. 1 In regard to the competency the question is not : 
Has the Church the power to punish? For it has been 
already fully shown that she has. The question therefore 
is : Who are the organs, or ministers, or officials through 
whom the Church exercises this power ? To inflict the 
punishments in question is an exercise of power or jurisdic 
tion, not in the internal forum, or in the forum of conscience, 
but in the external or social forum of the Church. It is an 
exercise of external jurisdiction, of the power to govern and 
to rule, which the Church possesses as an external and 
perfect society. 

1985. Now this power is twofold, as was seen, ordinary 
and delegated, according as a person possesses it by reason 
of his office, or only by authorization from one having 
ordinary jurisdiction. Hence all those, and only those, 
who are vested with jurisdiction in the external forum of 
the Church, whether ordinary or delegated, can inflict 
correctional punishments or censures. 

We shall treat under separate heads, i. of those who have 
ordinary power ; 2. of those who are vested with delegated 
jurisdiction. 

1 Cf. Miinchen, 1. c., vol. i., p. 33. 



i 2 ^>W Persons can Inflict 7^ hem f 

ART. I. 
W7/0 #?r vested with " Ordinary " Power ? 

1986. (7. What persons have ordinary jurisdiction or 
power to inflict correctional punishments ? 

y?. i. The Pope has ordinary jurisdiction, inforo externo, 
all over the world. Hence he can inflict these punishments 
upon all the faithful, and also upon all Ecclesiastics, from 
the highest to the lowest from the cardinal to the cleric in 
minor orders. CEcumenical Councils have the same 
power. 2. The Sacred Congregations of Cardinals, being 
the organs of the Pope and forming one and the same 
tribunal with him, can inflict these punishments all over 
the world, in matters coming within their respective 
spheres. 3. Legates of the Holy See can do so, in their 
territory, \vith the restrictions, however, imposed on them 
by the Council of Trent, as explained above. 3 

1987. 4. Bishops have ordinary jurisdiction in their 
diocese, and therefore can impose these punishments upon 
all their subjects, 4 and that as soon as they have been 
appointed or confirmed by the Holy See, even though they 
have not yet received consecration. For to impose 
censures is an act of jurisdiction, not of order. 

1988. 5. Archbishops or Metropolitans have a twofold 
ordinary jurisdiction in foro extcrno; one over their own 
diocese ; the other over the dioceses of their province. 5 In 
their own diocese, their power in the matter of censures is 
the same as that of Bishops described. So far as concerns 
the dioceses of their province, the jurisdiction of Metropoli 
tans extends, as was shown, 6 (a) over the suffragan Bishops, 
{b) the subjects of these suffragans. Prior to the Council of 
Trent, Metropolitans had power to excommunicate, 

1 Supra, n. 514. 2 Stremler, p. 181. 3 Supra, 11.521. (3) 

4 Supra, n. 897. Supra, n. 530, 531. 6 Supra, n. 529. 7 Supra, n. 530. 



What Persons can Inflict Them? 153, 

suspend, or interdict the Bishops of their province. * At 
present, however, according to the Tridentine enactment,, 
this power is no longer vested in them, 2 so far as the 
suffragan Bishops themselves are concerned ; though it is 
still possessed by them in regard to the Vicars-General and 
officials of the suffragans. 3 

1989. In what cases can the Metropolitan, at present, 
inflict correctional punishments on the Vicars-General and 
officials of his suffragans? 4 I. In all cases, where these 
officials violate any right of the Metropolitan,^.^-., where 
they place obstacles in the way of appeals to the Metropoli 
tans, or disobey injunctions or admonitions of the latter, 
made in the exercise of their metropolitical authority ; 5 
2. in all matters where the Metropolitan is obliged to 
exercise a supervisory authority, v. g., when the Vicar- 
General does not respect the rights of the Holy See, or 
continues to exercise jurisdiction even after his Bishop has 
been excommunicated. 6 3. Upon the subjects of their 
suffragans, the Metropolitan can inflict these punishments 
only on appeal and during visitation, 7 since only in these 
cases does he possess jurisdiction over them. 8 

1990. The Vicar-General, being the representative of the 
Bishop, also in contentious matters, and forming morally 
one and the same person and tribunal with him, has, indeed, 
the power to inflict these punishments, 9 though he cannot 
exercise it unless he has a special commission from his 
Bishop to that effect. 10 The Vicar-General of the Metropoli 
tan has, like the Metropolitan himself, so far as concerns 

1 Cap. 52 de sent, excom. (v. 39) ; Cap. I, de off. ord. in 6 (i. 16.) 

2 Cone. Trid., sess. 13, c. 8; sess. 24, c. 5 de Ref. 

3 Cap. i, de off. vie. in 6 (i. 13.) 4 Cf. supra, n. 630. 

6 Glossa, in cap. I cit. v. rationabili. 6 Kober, der Kirchenbann, p. 71. 

7 Cap. 7, de sent, excom. in 6 C (v. n.) 8 Supra, n. 531. 

9 Cap. 3 de appell. in 6 (ii. 15.) 
10 Cap. 2 de off. vie. in 6 ;i. 13). Kober, 1. c., p. 74. 



154 What Persons can Inflict Them ? 

the subjects of the suffragans, the right to impose the 
correctional punishments in question on them only where 
an appeal is made to him. 1 7. Vicars-Capitular (with us 
administrators, sedc vacant e) have, generally speaking, the 
same power as Bishops, in regard to inflicting these 
punishments. 2 

1991. 7. Both by the common law of the Church 3 and 
the special rules and constitutions of religious orders, as 
approved by the Holy See, these punishments (that is 
censures) can be inflicted upon their religious subjects, not 
only by the general and provincial Superiors, such as 
abbots, generals, and provincials, but also by local Super 
iors, as priors, Rectors, or guardians; by the general 
chapters, for the whole order ; by the provincial chapters 
of some orders, for the province. 4 

1992. 8. Furthermore, national and provincial Councils 
can enact or impose censures for the whole nation or 
province. 9. Moreover, some other persons, v. g., rural 
deans, in some places, though not in the United States, have 
the power in question, by virtue of privilege, custom, or 
rather prescription. 5 For it is certain that persons who 
have no power whatever by virtue of their office, 6 or by 
delegation, to impose correctional punishments, may 
acquire this power by prescription. 7 10. To all the above 
must be added those who, by common error, are considered 
as Superiors by a presumptive title. 11. Parish Priests 
have no longer ordinary power to inflict censures, as by 
custom the power granted them by the common law of the 
Church, in this matter, has been abrogated, and their power 
reduced to the forum internum. 8 Finally we observe that no 
body except the Pope can introduce a new kind of censure ; 

1 Kober, 1. c., p. 75. 2 Supra, n. 637. 

3 Cap. 10 de major, et ob. (i. 33) ; Cap. 8. de statu mon. (iii. 35.) 

4 Kober, 1. c., p. 78. 5 Cf. Supra, n. 85. 

6 Kober, 1. c., p. 77. 7 Cap. 18 de praescr. (ii. 26.) 8 Craiss., n, 6376. 



What Persons can Inflict Them ? 155 

inferior Superiors can merely inflict those censures which 
are already properly established. 



ART. II. 
Who are vested with " delegated" Power ? 

1993. Q. What persons have delegated jurisdiction to 
inflict the punishments in question ? 

A. All those to whom this power is given by those who 
are vested with ordinary jurisdiction, namely by the per 
sons enumerated under the previous question. Bishops and 
others vested with ordinary jurisdiction often find it 
difficult, nay impossible, to take cognizance personally of 
all causes falling under their jurisdiction, and of inflicting 
personally the proper correctional punishments. Hence 
they can and do authorize others to act for them, and to 
inflict punishments in their stead. They are, speaking in 
general, free to select as their delegates for the exercise of 
this power any worthy and competent person whatever, 
except a woman or a layman. 1 

1994. Hence also the Instructions Sacra Hcec of June ii> 
1880, and Cum Magnopere,ui 1884, enact in Article XII. : 
" Compilatio processus committi potest probo ac perito 
viro ecclesiastic^ cui assistat actuarius." The Instruction 
Causes Matrimoniales of 1884 likewise decrees: " Munus 
moderatoris actorum Episcopus vel ipse sibi assumet, vel 
suum Vicarium generalem, aut alium probum et expertum 
virum e clero ad illud delegabit." 2 

1995. Here it may be asked, whether the Pope can, by 
virtue of the fulness of his power, authorize a woman to 
exercise this power ? There are two opinions. The affirm 
ative is maintained by Schmalzgruber, on the ground 
that the prohibition to delegate women is merely juris ecclesi- 

1 Supra, vol. ii., n. 718. 2 Instr. S. C. de Prop. Fide, Causes matrimoniales, 6. 



156 What Persons can Inflict Them f 



iciy not juris divini ; others, with St. Alphonsus, hold 
the opposite opinion as more probable, chiefly because, as 
they say, women are by divine law incapacitated for this 
delegation, and the Pontiff cannot dispense from a divine 
law. Those who teach the affirmative point, in confirmation 
of their view, to the Cap. Dilecta, dc majorit. et ob. (I. 33), 
where it is stated that an abbess imposed suspension ab 
officio ct bcncficio upon certain Ecclesiastics subject to her, 
which action was sustained by the Pope, to whom the 
matter had been referred. But those Canonists and they 
form the great majority who hold the negative, say with 
the Glossa 1 that the suspension in the case was not a suspen 
sion proper, or a censure whose violation would have pro 
duced irregularity, but merely a command, on the part of 
the abbess, forbidding those Ecclesiastics to say mass, until 
they had corrected themselves, and withdrawing meanwhile 
their salary. In fact, the above decretal clearly states 
that the abbess could inflict no excommunication, and 
consequently, by implication, no other censure. The Glossa 2 
also says that women are incapable of exercising jurisdiction 
proper. 

1996. We also say above, except a layman. The Pope (not 
an inferior prelate) can, however, delegate this power to a 
layman. 3 As a person who has the first tonsure is a cleric 
and not a layman, he may receive this delegation, though it 
is more becoming that only priests or persons in sacred 
orders be authorized to impose these punishments. 4 

1997. Those who exercise this power of inflicting reforma 
tive punishments by delegation, that is, by authorization 
from the judex ordinarius, exercise this jurisdiction only in 
the name and by the order or authority of the latter. 5 From 
this it follows that their power lapses as soon as it is 
properly and lawfully revoked by the principal or Superior 

1 In h. c. v. Jurisdictioni. 2 Ib. 3 Cap. 2 de Judic. (II. I.) 

4 Kober, 1. C., p. 84. * II). 



What Persons can Inflict Them f 157 

delegating, 1 and also when the latter himself loses jurisdic 
tion, whether by death, removal, transfer, resignation, 
suspension or excommunication, for it is plain that the 
agent or delegate cannot continue to act for and in the 
name of a principal who is himself no longer capable of 
exercising the power in question. 

1998. However, the agent or delegate in the case retains 
jurisdiction (a) until he is properly notified of the death, 
removal, transfer, resignation, etc., of the principal ; b) and 
also when the case or matter is no longer res Integra ; v. g. v 
when he has already cited the parties, 2 in which latter case 
he can finish the case which he has already begun, even 
though he has become aware of the fact that his principal 
has lost jurisdiction. 

1999. As has been seen, 3 the rule is that delegates cannot 
in turn authorize others to act for them. We say, the rule is ; 
for, as we have also shown, 4 Papal Delegates can generally 
appoint others in their stead, to take cognizance of causes 
and inflict the punishments in question. 5 

ART III. 

Conditions for the Exercise of this Power. 

2000. We come now to the second question, namely, what 
are the requisite conditions in order that the above persons, 
who have the power, ordinary or delegated, to inflict refor 
mative punishments, may also validly and lawfully exercise 
this power? i. There must be no canonical obstacle or 
impediment in the way. Hence a Bishop who is excom 
municated or suspended as vitandus, cannot, even validly, 
inflict these punishments. 6 Nay, according to some, this 
holds also when he is notoriously under censure although 

1 Our Counter-Points, n. 37. sq. Cap. 20 de off. jud. del. (I. 29.) 

3 Suprn, vol. i., n. 229. < Supra, vol. i.. n. 228. 

6 Cap. 3. de off. jud. del. (I. 29.) 6 Cap. Excep;ionem, de except. 



158 What Persons can Inflict Them ? 

he is not denuntiatus, l for the notoriety in the case is placed 
on the same footing with the formal publication of the 
censure. If, however, the suspension or excommunication 
which he has contracted is occult, he can impose the 
punishments under discussion validly, indeed, though not 
licitly. The Vicar-General of such Bishop incurs the same 
disability, though not the censure ; for the Vicar-General 
forms one and the same person, morally, with the Bishop. * 

2001. 2. Again, the Superior shall, as a rule, be in his 
own diocese or territory, and that on pain of nullity of the 
punishment, when he inflicts it. We say, as a rule ; 8 for the 
* exceptions, see supra, No. 1721. 

2002. 3. He shall act with freedom of will and not from 
compulsion. According to the more common opinion, the 
punishment inflicted by a Superior, when under grave fear, 
is valid, though illicit. For such fear does not, generally 
speaking, destroy the free will of the Superior. But the 
absolution from the censure, extorted unjustly from the 
Superior, by violence or fear, as by threats and menaces, is 
null and void. 4 

2003. 4. In like manner, he shall not proceed f rom personal 
motives, that is, from hatred, dislike, or revenge. Hence 
no one can or should, as a rule, inflict correctional punish 
ments (or punishments of any kind) in his own cause, that 
is, for personal injuries. For both natural and positive law 
dictate that no one shall be judge in his own cause, or at 
the same time judge and accuser. " Nullus unquam," says 
the law of the Church, " praesumat accusator simul esse et 
judex vel testis." 6 The reason is that a judge or Superior 
inflicting punishment should be wholly free from personal 
bias or feeling, and act solely from a sense and love of 
justice. Now, considering the frailty of human nature, it 

1 Stremler, 1. c., p. 182. 2 Cap. i. de off. vie., in 6. 

3 Can episcopi 9, q. 2 ; Supra, n. 634, 635. 
4 Cap. unic. de his quse metu, in 6 (I. 20.) 5 Can. I., c. 4, q. 4. 



What Persons can Inflict Them? 159 

is impossible to expect that a person who is directly con 
cerned or interested in a matter, will act with perfect 
impartiality. 1 Hence, too, the law of the Church presumes 
that a Superior who imposes the punishments in question 
for personal injuries acts from motives of hatred and 
revenge, and is very reprehensible. 2 

2004. This principle is fully borne out and illustrated by 
the Sacred Canons. A certain Bishop Januarius had 
excommunicated a person named Isidore for personal in 
juries, namely, for having been contumeliously treated or 
insulted by Isidore. Pope Gregory the Great, to whom 
the matter was referred, reprimanded the Bishop, in the 
severest terms, for having thus avenged a personal insult. 
The Pope, moreover, threatened to punish him if he 
should ever presume to do so again. Here is the stinging 
reproach of the Pontiff to Bishop Januarius : " Nihil te 
ostendis de ccelestibus cogitare, sed terrenam te conversa- 
tionem habere significas ; dum pro vindicta proprice injuries 
(quod sacris regulis prohibetur) maledictionem anathematis 
invexisti. Unde de caetero omnino esto circumspectus atque 
sollicitus, et talia cuiquam pro defensione proprice injuries 
tuce inferre denuo non prassumas. Nam si tale aliquid 
feceris, in te scias postea vindicandum." St. Cyprian 
writes similarly that, for injuries inflicted upon his own 
person, he would never impose any punishment. His words 
are : " Contumeliam episcopatus nostri dissimulare et ferre 
possum, sicut et dissimulavi semper et pertuli." * 

2005. However, what has been said has reference only to 
purely personal injuries, for the case is different when there 
is question of the rights of the Church. When these are 
violently attacked and their existence threatened, the 
respective Prelate is at all times authorized to inflict the 

1 Cf. Konings, n. 1662. 2 Schmalzg., 1. 5, t. 39, n. 25. 

3 Can. inter querelas 27, c. 23, q. 4. 

4 Epist. 9 ad clerum ; Cf. Kober, 1. c., p. 87. 



1 6o What Persons can Inflict Them f 

punishments in question upon the unjust assailant, since 
here there is question, not of rights that concern him 
personally, but of rights of his See which he is bound to 
preserve and defend, by virtue of his office. x For further 
information on this head we refer to what we have said 
above, No. 721. Besides conforming to the conditions 
enumerated, the ecclesiastical Superior, when about to 
inflict reform punishments, is obliged also to observe certain 
formalities, such as giving the delinquent due warning and 
a fair trial. But these formalities will be discussed in a 
separate article, later on. 
i Cap. 6, de sent, excom. in 6 (v. II); Bened. XIV., de syn. 1. 9., c. 9, n. 12. 



CHAPTER IV. 

UPON WHOM CAN CORRECTIONAL PUNISHMENTS BE 
INFLICTED ? 

ART. I. 
Adult Members of the Church. 

2006. No person can become liable to the punishments 
of the Church, correctional or punitive, unless he is a member 
of the Church by baptism. For infidels, that is, all those who 
are unbaptized, do not fall under the power of the Church. * 
The case is different with heretics, schismatics, and apos 
tates. For although they have fallen away from the 
Church, they nevertheless remain in a certain sense 
members of her pale, by reason of their baptism, and arc 
subject to her laws and authority. Hence, per sc, they also 
fall under her punishments, correctional or punitive. " 

2007. Of those who are members of the Church, only 
adults are, generally speaking, punishable with correctional 
punishments. For by the law of the Church children 
under the age of fourteen are not presumed to have that 
use of reason which is required in order that a person can 
become guilty of obstinate persistence in crime, 3 which ob 
stinacy is, as was seen, an essential condition of the punish 
ments in question. For the same reason, adults who have 
permanently lost the use of reason, v. g., the insane, are 
not capable of being punished. 

1 Cone. Trid., sess. 14, c. 2 de sacr. pcenit. 
" Kober, der Kirchenbann, p. 95. 3 Cap. 12 de poenit. (v. 38.) 



Upon whom can Correctional 



ART. II. 
Entire Communities. 

2008. Q. Can the punishments in question be inflicted, 
not only upon individuals, but also upon a whole community 
as such, v. g., upon a whole religious confraternity, or a 
Parish, or Chapter, or other corporate body, secular or 
religious ? 

A. It is certain that excommunication cannot be thus 
imposed. This is expressly laid down in the law of the 
Church, as still in force. " In universitatem vel collegium/ 
says Pope Innocent IV. (1245), "proferri excommunicationis 
sententiam penitus prohibemus . . . sed in illos duntaxat de 
collegio vel universitate, quos culpabiles esse constiterit, 
promulgetur." * For, as was shown, it is a principle both 
of the natural law, and of the positive ecclesiastical law, 
that punishment shall fall only on \hzgitilty person himself 
and not upon the innocent. Hence, when members of a 
community or moral body become guilty of crime punish 
able with excommunication, they alone should, upon due 
conviction of their crime, be excommunicated, and that not 
collectively, but individually. 2 

2009. The case is different with suspension and interdict, 
which, as was seen, may be imposed upon a whole commu 
nity or chapter, as such, that is, in its capacity of moral or 
corporate body. But a suspension which is inflicted upon 
a whole community or moral body, v.g., a Chapter, 
Cathedral, or collegiate, a monastery, temporarily with 
draws only those rights which belong to, or are exercised 
by the community or moral body, as such, but not those 
rights which are possessed by the members of such body, 
as individuals. In other words, the suspension will extend 
only to corporate acts. 

1 Cap. Romana 5. de sent, excom. in 6 (v% it.) * Kober, 1. c., p. 100. 



Punishments be Inflicted? 16 



o 



2010. Thus a Cathedral chapter can be suspended abofficio 
or also a beneficio. But the suspension from the officium 
will be merely from the capitular functions or office, viz., 
the right of election. And the suspension from the ben- 
eficium will be merely from the income which the canons 
have as canons, but not from that which they may derive 
from other ecclesiastical offices held by them. Consequent 
ly suspension ab ordine cannot be inflicted upon a moral 
body, because the exercise of the ordo, or sacerdotal func 
tions, is a personal, not a corporate, right or power, that is, 
a power belonging to persons as individuals and not as 
members of the community. * Examples of suspension from 
office or from benefice inflicted upon ecclesiastical corpor 
ate bodies may be seen in the Cap. unic. ne sede vac. 
in 6 (III. 8) ; Cap. i Extrav. Com. de Elect. (I. 3) ; 
Cap. 40 de Elect, in 6 (I. 6). 2 

2011. From this reasoning it will also be seen why ex 
communication cannot be imposed upon corporate bodies 
as such. For this punishment, by its very nature, dis 
possesses a person, for a time, of certain spiritual benefits, 
such as membership of the Church, of the sacraments, etc. 
Now all these are privileges which members of a moral 
body possess, not as members of such body, but as members 
of the Church and by virtue of baptism. 3 Whether an ex 
communication inflicted upon a whole community would 
be not only illicit, but also invalid, is controverted. 4 

2012. Hitherto we have seen that all those who are 
members of the Church can be visited with correctional 
punishments. This, however, is not to be understood as 
though a particular member could be punished by any and 
every ecclesiastical Superior ; for a person can be punished 
only by that particular Superior who possesses jurisdiction, 
ordinary or delegated, over him and to whom, therefore, he 

1 Kober, die Suspension, p. 32. 2 Cf. Stremlev, 1. c., p. 188. 

3 Kober, 1. c., p. 31. 4 Cf. Konings, n. 1659, q. 6. 



164 Upon whom can Correctional 

is subject. * Who these are and over whom theif authority 
extends, has already been shown. 2 

ART. III. 
The Pope and Bishops. 

2013. From the principle just laid down it follows that the 
Pope cannot incur any reformative punishments whatever, 
not even those latce sent entice inflicted by the general law of 
the Church. For he has no Superior on earth, and hence 
there is no one who can exercise jurisdiction over him. 
Again the highest law-giver, is not, in the ordinary sense, 3 
bound by his own laws, since no one can be his own Supe 
rior. 4 Now the Pontiff is the highest law-giver in the 
Church, and from him all the general laws of the Church 
emanate, either directly or indirectly. 5 

2014. Bishops, by an express provision of the Sacred 
Canons, do not incur any of the suspensions or interdicts, 
inflicted ipso facto or laftc scntcntue by ecclesiastical law, 
save when they are expressly mentioned. 6 This privilege 
or exemption does not, however, extend to excommunica 
tion , for the Cap. 4 just quoted, which was enacted by 
Pope Innocent IV., in 1245, only exempts them from 
suspensions and interdicts, but not from excommunications. 
Now privileges or exemptions, which, like the present one, 
derogate from the common law of the Church, must be 
strictly construed. " 

1 Cap. 21 desent. excom. (v. 34). 2 Supra, n. 1859 sq. 

3 L 31 ff. de leg. (i. 3). 

4 Nemo sibi imperare neque se prohibere potest " (L. 51 ff. de recept. 4, 8.) 

5 Kober, die Excom., p. 119. 6 Cap. 4 de sent, excom. in 6 (V. n.) 

7 Schmalzg., 1. c.; Kober, 1. c., p. 120. 



Punishments be Inflicted? 165 

ART. IV. 
Strangers and Travellers. 

2015. The Bishop, as has been seen, possesses jurisdiction 
over all those Avho belong to his diocese, laics as well as 
Ecclesiastics. Here several questions present themselves. 
First, it may happen that a diocesan or subject of the Bishop, 
lay or ecclesiastical, is travelling outside of the diocese, and 
while so travelling transgresses a law of the diocese to 
which he belongs, but from which he is absent at the time. 
Now suppose the law thus transgressed has a censure an 
nexed. Does he incur it? In other words, and to make 
the question more general and applicable to all cases, does 
a subject who, while out of the diocese to which he belongs, 
violates a diocesan law having a censure annexed, incur 
this punishment? Observe, we say, dioeesan law ; for if he 
violates a general law of the Church, he is amenable to his 
own Ordinary. 1 Again, we say, while out of the diocese ; for 
such a person can certainly be punished by censures, even 
while he is out of the diocese, for crimes committed in the 
diocese. 

2016. We now answer the question. It is certain that 
reformative punishments or censures, which are enacted by 
synodal statutes or by way of a general precept per senicn- 
iiam generalew, v.g.. by circular letters, are not incurred by 
subjects when out of their diocese. This is expressly 
enacted by the law of the Church. " Statuto episcopi," say 
the canons, " quo in omnes qui furtum commiserint, ex- 
communicationis sententia promulgatur, subditi ejus, 
furtum extra ipsius dicecesim cornmittentes, minime ligari 
noscuntur: cum extra territorium jus dicenti non pareatur 
impune. " For such statutes or commands are territorial 

1 Supra, vol. ii., n. 784. - Cap. 2. cle Const., in 6 (T. 2.) 



1 66 Upon whom can Correctional 

and do not bind out of the territory of the Superior by 
whom they are made. 

2017. As to the correctional punishments which are im 
posed by way of a special precept or command per sententiam 
specialem v. g., if the Bishop lays a command or prohibition 
upon some particular subject or subjects of his, under pain of 
censure, it is controverted whether this subject, violating 
the command while out of the diocese, can be visited with 
censure by his Bishop. The affirmative that is, the opin 
ion which holds that the delinquent can be visited with the 
censure, is the more probable opinion. 

2018. We shall now invert the case, and consider the 
liability of the above stranger or traveller in relation to the 
correctional punishments of the strange diocese where he is 
for the time being. In other words, if the traveller is not 
liable to the local reformative punishments of his own dio 
cese, as explained above, is he also exempt from the local 
correctional punishments of the diocese where he is at the 
time ? Or, to put the question in a more general way : Do 
strangers, and travellers, and all those who are out of their 
own diocese, and in a strange diocese, fall under the cor 
rectional punishments of the Bishop in whose diocese they 
are for the time being ? 

2019. Before answering, we observe that they incur all 
the censures established by the common law of the Church, 
unless they are in abeyance in the place where they arc for 
the time being. The reason is that a person remains every 
where subject to the common law, and consequently also to 
the punishments decreed by it. The Bishop in the case 
becomes competent to inflict the punishments in question, 
rationc delicti, as was seen above. * 

2020. We now answer : They incur those censures of the 
Ordinary of the place where they are for the time, which 

1 Supra, n. 791. 



Punishments be Inflicted f 167 

are annexed to local laws the violation of which would dis 
turb the public peace or order of the place, or be injurious 
to the common good of such place. In this sense, they be 
come subject to the Bishop of the place, ratione delicti. 
They do not fall under any of the other censures of the or 
dinary of the place where they are for the time being. x 

i Craiss., n. 6389 sq. ; Stremler, 1. c., p. 186. 



CHAPTER V. 

FOR WHAT CAUSE CAN REFORMATIVE PUNISHMENTS BE IN 
FLICTED ? 

ART. I. 

Crimes whicJi arc Grave. 

2021. As has already been seen above, censures are 
punisJuncnts, and therefore can be inflicted only for crime. 1 
Hence, whatever frees from sin, v.g., ignorance, fear, inad 
vertence, exempts also from the punishments in question. 
Canonists here ask, whether these punishments can some 
times be imposed lor venial sins. There are two opinions. 
Some canonists hold the affirmative, in this sense : they 
distinguish between grave and light censures; grave cor 
rectional punishments, they say, cannot be inflicted for 
light offences, but light censures can. - By light censures 
they mean, v.g., a suspension or interdict, which is but par 
tial and not total, and not of more than two days duration. 
2022. Others maintain the negative, 3 and say that all cor 
rectional punishments or censures, no matter how partial 
and brief in duration, are always very severe punishments, de 
priving a person, as they do, of spiritual benefits, which are 
essentially of greater value than temporal, and moreover 
entailing temporal disadvantages, 4 especially loss or climinu- 

Supra, n. 1668, 1847. 

- However, those canonists who hold this opinion concede that a Bishop or Supe 
rior would net very imprudently, by inflicting even what they regard as very light 
censures for venial fiults. (Craiss.. n. 6397.) 

:> This seems, at least practically, the only safe opinion. 

* Thus Kober (Susp., p. 54) says, nobody will deny that to forbid an Ecclesiastic 
to perform some function of his office, or to deprive him of his income, wholly or 
partly, is cf itself, apart from the injury to his good name and honor, already a very 
grave punishment for an Ecclesiastic. 



Infliction of Reformative Punishments. 169 

tion of good name ; that, consequently, they should never 
be imposed for sins which are merely venial. Thus 
Schmalzgruber l teaches that censures namely, excom 
munication, suspension, and interdict, as they are usually 
inflicted, cannot be imposed for a light or venial offence. 
This, he maintains, is the opinion of all canonists. The rea 
son given by him is, that the censures are most severe punish 
ments, and therefore out of proportion with a venial fault. 
Now, reason and equity demand that the punishment shall 
be in proportion with the offence. 2 

2023. The words of this great canonist, whom Benedict 
XIV. calls facile Canonistarum princeps, are : "Dubitaturan 
ob culpam venialem censura infligi possit ? Dicendum, ex- 
communicationem majorem, suspensionem, et interdictum, 
prout communiter feruntur, ob culpam venialem injungi non 
posse. Ita ex omnium sententia tradunt Navar. . . . Et col- 
ligitur ex can. Nemo 41 ; can. Nullus 42, Causa, 11, Q. 3 ; 
et ex Trid. sess. 24, c. 3, de Ref. Ratio est, quia sunt pane? 
gravissimcz, ac pcenas improportionatas ad culpam levem." ; 

2024. We have said, merely venial ; for these canonists all 
admit that when a sin, which is venial in itself, becomes 
grievous on account of certain circumstances, it may be 
punished with censures. 

2025. This second opinion, then, is based on the theory 
that all repressive correctional punishments are severe 
punishments. 4 In fact, it is not an easy matter to discover 
any censure whatever (we always use the word censure 
as synonymous with correctional punishments and vice 
versa), that can be considered as light. For every censure, 
no matter how light, besides inflicting a spiritual punish 
ment, injures the good name of a person thus punished. 
Again, the Sacred Canons require so much circumspection, 

L. 5, t. 39, n. 56, 57, 60. 

8 Cap. 5 de poenis, in 6 ; Bened. XIV., De Syn., 1. 10, c. I, n. 2. 
3 L. V., t. 39, n. 56, 57. 4 Pierantonelli, Praxis etc., p. 176. 



i 70 For luhat Cause can Reformative 

such great prudence and precaution, in the infliction of 
these punishments, as to treat them always as most serious 
punishments. Thus the Council of Trent commands that 
censures should be inflicted only sobrie magnaque circum- 
spectione, lest they should otherwise produce perniciem potius 
quam salute in. 1 

Hence it is the unanimous opinion of canonists that 
censures, as they are commonly inflicted, cannot be even 
validly inflicted save for grave offences. 



ART. II. 
They should be preceded by the Milder Remedies. 

2026. Nay, as the celebrated canonist Kober 2 well 
remarks, they cannot be imposed even for grievous offences, 
except after all other milder punishments have been applied and 
failed to produce any effect. A skilful physician does not forth 
with amputate a limb because of a sore or wound ; he first 
tries to cure it by milder remedies. So also should a Bishop 
not make use of the sword of censures, even for great 
crimes, save when he has vainly applied all the other milder 
punishments. 

2027. Consequently the rule is that these punishments 
should be imposed only in extreme cases, that is, only for 
the gravest and more heinous crimes, and even then only as 
a last resort, after all the lesser forms of punishment have 
been tried in vain. Thus Pope Benedict XIV. 8 inveighs 
strongly against the infliction of censures for any but very 
grave and enormous crimes. In support of his view, he 
quotes Gerson, who compares a Prelate inflicting censures, 
against the above rule, to a person who, wishing to chase a 
fly from his neighbor s face, cuts off the latter s head, and 

1 Sess. 25, cap. 3de Ret. 2 Der Kirchenbann, p. 140 sq. 

3 De Syn., 1. 10, c. I, n. 2. 



Punishments be Inflicted ? 171 

to a person who, desirous of curing a slight wound in his 
horse s foot, cuts off the foot itself, and thus kills the animal. 

2028. Hence also, as Pope Benedict XIV. l teaches, 
Bishops should scarcely ever, in their statutes, synodal or 
extrasynodal, impose censures which are incurred ipso facto 
by those violating such statutes ; only where the general 
law of the Church inflicts censures latce sent entice should 
Bishops re-enact such censures, but rarely otherwise. 
Stremler 2 therefore well remarks that Superiors should act 
with exceeding moderation, in inflicting censures, and 
should be thoroughly versed in the teaching of approved 
canonists on this head. 

2029. From what has been said, it follows that, if some 
thing be commanded under censure which, everything 
considered, is not a grave matter, the precept or command 
does not oblige sub gravi, and therefore no censure can be 
incurred for its violation. 3 We say, everything considered ; 
for, as was seen, offences, which are of themselves venial, 
may become grievous, on account of circumstances, v. g., 
because of the scandal they cause. The great difficulty, 
however, consists in determining practically what circum 
stances do render such an offence grievous. Canonists 
agree that no fixed rule can be laid down, but that it must 
be left to the prudence and conscience of the Superior to 
decide, in a concrete case, whether the circumstances are 
such as to authorize him to impose censures. It is a matter 
that requires the greatest circumspection on the part of the 
Superior. However, in this case, as in all other cases, he 
must be guided by the rule that he should inflict censures 
only in extreme cases, and when he has vainly applied the 
milder punishments. * 

1 L. c., c. 2, n. 15 sq. 2 L. c., p. 191. 3 Craiss., n. 6398. 

4 Kober, 1. c., p. 141 ; Kober, Susp., p. 55. 



i 72 For what Cause can Reformative 

ART. III. 
Incorrigiblcncss. 

2030. Hitherto we have shown that the punishments in 
question should be inflicted only for crimes, and that only 
for the graver and more heinous crimes, and even then only 
with extreme caution and very rarely. We now proceed 
a step farther, and say that they are not to be inflicted even 
for the greatest crimes, unless the delinquent Jias openly and 
incontestibly sliown his incorrigible, obstinate, and stubborn per 
sistence in his crime. J Kober says, let the crime be ever so 
enormous, the injury it has done ever so great, and the 
scandal it has given ever so serious, no censure can be 
inflicted, if the delinquent enters into himself, is sorry for 
his crime, repairs the scandal, and makes satisfaction, as far 
as he can. 

2031. Hence the Superior, before inflicting censure, must 
repeatedly address warnings and admonitions (monitio ea- 
nonicd) to the delinquent / . r., call upon him to amend. 
And only when, notwithstanding these warnings, he inso 
lently and contemptuously persists in his wicked course, or 
refuses to repair the scandal he has given, can censure be 
imposed upon him. In fact, before proceeding to inflict the 
censure, the Superior must have juridical proof of the real 
existence of the stubbornness of the delinquent. He obtains 
this proof when he addresses to the delinquent a formal 
warning and command to amend, in such a manner as to be- 
pro vable, v. g., in the presence of two witnesses ; or by 
having the delinquent himself sign the warning, which 
should be in writing. For, as soon as it is shown that this 
warning has been disregarded, proof is had of contumacy. J 

2032. We have thus far, in the present article, shown 

1 Fessler, der Kirchenbann, p. 17. 2 Kober, der Kirchenbann, p. 145. 

:? Kober, Susp.. p. 56. 



Punishments be Inflicted? 175 

that correctional punishments can be inflicted (#) only for 
crimes, (&} wnich are very grave (c) and accompanied by 
incorrigibleness, (d) and even then only after the milder 
forms of punishment have been inflicted without effect. 
Besides, the crime, in order to be deserving of these pun 
ishments, must be external, complete, &s\& juridically established. 
As we have already explained these points above, under 
Nos. i692sq., it is not necessary to dwell upon them again 
at present. 

ART. IV. 
Crimes which are entirely of the Past. 

2033. Q. Can a Bishop inflict correctional punishments 
or censures for crimes altogether past ? 

A. He cannot, if the offence is purely and entirely past or 
ended, that is, does not, in a measure or certain sense, con 
tinue. Now a crime, though past, is said to continue in a 
measure, when the offender, though he does not repeat the 
crime, yet evinces no signs of sorrow for it, or refuses to 
repair the scandal given by him, or to make due amends. 
The reason why these punishments cannot be imposed for 
offences altogether of the past, is, that these punishments 
are established and inflicted chiefly and directly for the 
purpose of reforming the delinquent and inducing him to 
break off his evil ways and disobedience. But it is evident 
that they would lack this characteristic if they were im 
posed as pure punishments for crimes which are completely 
of the past, and for which the offender is sorry and ready 
to make due reparation. 1 

2034. We say, if the offence is purely and entirely past ; for 
where the guilty party has indeed ceased to commit the 
crime, but yet refuses to make the proper satisfaction, or 

1 Schmalzgr., 1. 5, t. 39, n. 67. 



1 74 For what Cause can Reformative 

repair the scandal he has given, and consequently evinces 
no true sorrow for his offence, his crime, though past as to 
the criminal act itself, nevertheless continues, morally 
speaking; there is present disobedience and contumacy, 
and consequently such a person may be compelled by 
censures to make amends. l 

2035. However, as has been shown, suspension and inter 
dict may be inflicted, not merely as correctional punishments, 
but also as punitive. Hence, when they are imposed as 
vindicatory punishments, they may be inflicted for crimes 
which have completely ceased and are not accompanied by 
present contumacy or persistence in criminal ways. Ex 
communication alone can be inflicted only as a reformative 
punishment, and therefore never for crimes altogether past. 

2036. Besides, even for a crime altogether over, a person 
may be temporarily forbidden to receive holy communion, 
attend divine service, associate with others, etc., as is done 
in religious communities. But these prohibitions, though 
also called, in law, excommunications or suspensions, are 
not censures proper, since their violation does not produce 
irregularity; hence they are purely vindicatory punishments, 
or necessary precautionary measures to prevent scandal. 2 

ART. V. 
Future Crimes. 

2037. Q. Can a Bishop inflict the punishments in question 
ior future crimes? that is, can he forbid future criminal acts, 
under pain of censure? 

A. He certainly can, by way of a synodal statute, or an 
extrasynodal general mandate. In other words, he can, 
both in synod and out of it, make *. general enactment impos 
ing a reformative punishment upon any one who may 

i S. Alph., 1. 7, n. 49- 2 Craiss., n. 6407. 



Punishments be inflicted? 175 

violate the command. Whether he can also do so by special 
sentence, or in a particular case, is a more involved question. 
In order to arrive at a clear understanding of the matter, 
it is necessary to observe that, where the crime is altogether 
future and has not, in some sense, already begun to be 
perpetrated, the Bishop cannot, in any way, threaten to 
inflict a censure, whether by way of ferendce sententice or by 
way of latce sententice. For to threaten a particular person, 
who is wholly innocent, with punishment, would be a grave 
injustice to such a person, since it would injure his reputa 
tion, inflict upon him poignant mental suffering, and subject 
him to grievous humiliation and indignity without any 
cause whatever. This is forbidden by the very law of 
nature. 

2038. We say, altogether future ; for where a person has, 
so to say, already begun to commit the crime, and taken 
the preparatory steps, thus rendering it morally certain 
that he will consummate the crime, he can justly be threat 
ened with the punishments in question, if he commits the 
crime or corpus delicti. Evidently no injury is done him. 
He has already commenced a criminal course, and the 
Bishop has a right, nay, a duty, to endeavor, by the threat 
of punishment, to hinder him from going any farther in 
his evil course and consummating the crime. 

2039. Next we must distinguish between these two cases : 
one, where the Bishop, in a particular case, imposes a 
censure ferendce sententice, namely where he merely threatens 
a censure, v. g., where he informs Titius that if he does so 
and so, he will proceed to inflict upon him suspension by 
way of ferendce sententice: the other, where he inflicts a 
censure latce sententice, that is, where, v.g., he notifies Caius 
that, if he fails to do so and so, he will be ipso facto sus 
pended. 

2040. Having given these explanations, we shall now an 
swer the question. It is certain that the Bishop can inflict 



1 76 For what <~ausc can Reformative . 

or rather threaten to inflict, by special sentence, /. e., in a 
particular case, a censure of the first kind, that is, one which 
vsfcrenda scntcntice, for crimes which are future, as explained. 1 

2041. On the other hand, it is held by some canonists 
that the Bishop cannot, even validly, inflict by special sen 
tence a correctional punishment or censure, to be incurred 
ipso facto, for future crimes. Thus the Sacred Canons ex 
pressly enact: " Caveant tamen (episcopi) ne tales senten- 
tias excommunicationis, sive specialiter sive generaliter, in 
aliquos pro fnturis culpis, videlicet, si tale quid fcccrint . . . 
proferre prsesumant." 2 And the Glossa, commenting on 
this passage, explains : " Aliud est statutum (^ general man 
date, made in or out of synod), et aliud sententia. Statutum 
enim bene potest fieri pro futuris delictis, hoc modo : 
statuimus ut nullus hoc faciat, et qui fecerit, sit excommu- 
nicatus ipso facto. Aliud est sententia quae sic profertur : 
Excommunico T. si furtum fecerit ; et hoc hie prohibetur. 3 
We say, by some canonists ; for others maintain the con 
trary. 

2042. The reason given by those who maintain the 
negative is, that to impose by special sentence a correc 
tional punishment in such a manner as to be incurred 
ipso facto is to inflict it without any previous trial or 
judicial proceedings ; now the law of the Church, as in force 
also with us, both according to the Instruction Quamvis, 
1878, and the Instruction Cum Magnopcre of 1884, enjoins 
that, save in the extraordinary and exceptional case where 
suspension can be imposed " ex informata conscientia," the 
ecclesiastical judge shall not inflict censure, except for 
crime which has been juridically established, that is, proved 
by due ecclesiastical trial. Thus also the S. C. de P. F. 
expressly declared in 1867: " Justitia non patitur, ut 

1 Lib. 7, n. 49. ~ Cap. Romana 5, de sent, excom. in 6 (v. n). 

3 Glossa, in cap. cit. v. fnturis; Glossa in cap. 2, de const, in 6. (I. 2). v 
commisffunt. 



Punishments be inflicted. 177 

poenae infligantur adversus eos, de quorum crimine ju- 
diciaria ratione adhuc non constat." J In fact, the law of na 
ture requires that no person shall, as a rule, be punished, un 
less he has been heard in his own defence. Now, to inflict a 
punishment by special sentence ipso facto would be di 
rectly to violate the right of self-defence, since a person 
would be punished without any trial whatever. 

2043. Whatever opinion may be adopted, it is certain 
that all ipso facto correctional punishments whatever, 
whether imposed by special sentence or by way of a 
law or general mandate, are incurred ipso facto only in 
conscience and in the internal forum, and do not hold or bind 
in the external forum of the Church, except upon due trial 
and declaratory sentence. For in the external forum no 
one incurs a censure by the criminal act itself, that is, ipso 
facto, but only upon declaratory or condemnatory sen 
tence, both of which must be preceded by a trial. 

1 Apud Rota, Enchir., p. 277. 



CHAPTER VI. 

FORMALITIES OBSERVED IN INFLICTING CORRECTIONAL 
PUNISHMENTS, ALSO IN THE UNITED STATES. 

2044. The coercive power of the Bishop, by which he is 
authorized to impose correctional punishments, is, like the 
legislative, an ordinary power, being inherent in his office 
of Bishop. Hence he can exercise it either personally or 
through others. Now the Bishop should indeed chastise 
offenders, repress abuses, and break up scandals. But he 
should do so, as Stremler remarks, /;/ the manner prescribed 
by the Sacred Canons, and not otherwise. Thus also the In 
structions Sacra Hccc of June i ith, 1880, and Cum Magnopcre, 
of 1884, enact: " Ordinarius pro suo pastorali munere te- 
netur . . . curare, ut. . remedia a canonibus statuta . . provide 
adhibeat." " And again : " Conscientise Ordinarii remittitur 
cujusque remedii applicatio, canonicis prcescriptionibns servatis 
pro casuum ac circumstantiarum gravitate." 

2045. The question, therefore, naturally presents itself: 
What is this manner, or what are the formalities which the 
Bishop is bound to observe, when he inflicts correctional 
punishments or censures ? They are chiefly three : The 
canonical warning and the precept, the ecclesiastical trial, 
and the sentence. We shall now explain each of these 
separately. 

ART. I. 
The Canonical Admonitions and the Precept. 

2046. We have already shown what is meant by the can 
onical warnings and the precept, and with what formalities 

1 L. c., p. 200. 2 Art. i. 3 Art. iii. 



Correctional Punishments, also in the United States. 1 79 

they are given. * Here we shall merely add a few remarks 
which will elucidate still better what we have already said 
above. The canonical warning is of two kinds : (a) general 
or virtual ; (b) special or express. It is special, when it is 
addressed to a particular person ; general or virtual, when 
made to a number of persons in a general ivay, but not to 
any one in particular, v.g., when the Bishop enacts a 
statute, and threatens that all who violate it shall be visited 
with excommunication. 

i. Necessity of the Previous Admonitions. 

2047. Q- ^ re the canonical admonitions always to be 
given before a repressive correctional punishment can be 
imposed? 

A. First, in the case of censures which are inflicted a jure, 
in such a manner as to be incurred ipso facto, no special pre 
vious warning, and therefore also no precept is required. * 
The reason is, that the law itself or statute in question is 
a constant and standing admonition and precept. Hence no 
special admonition, distinct from that already contained in 
the law or statute, need be addressed to the offender, 3 for 
these punishments are incurred in the internal forum, ipso 
facto, that is, without any formality whatever. In other 
words, no admonition or precept, no trial or sentence, no 
intervention whatever of the ecclesiastical judge, is needed 
in the case ; for in foro inter no the censure executes it 
self, so that, the very moment a person has committed the 
offence designated in law as punishable ipso fcto with 
censure, he incurs it, in the internal forum, without any 
formality whatever. Consequently,* when there is question 
of a person having incurred a censure latce sententice, it is 
a matter of conscience for such person to determine 
whether he has really incurred it or not. If he knows that 

1 Cf. Craiss., n. 6409; Kober, Susp., p. 59. 2 Cap. 26. de appell. (ii. 28.) 

3 Kober, Excom., p. 149. 



i So Formalities observed in inflicting 

he has committed the crime to which the censure is an 
nexed, he is bound in conscience or in foro interno to 
observe it. 

2048. We say, " executes itself in foro interno;" for the 
external effects of the censure do not follow, save when the 
matter has been brought before the external forum, or before 
the judicial tribunal of the ecclesiastical judge, and the 
latter, after due trial, has declared that the censure was 
really incurred. 1 Hence, so far as the forum cxternum is 
concerned, the punishments in question are not incurred, 
save after an ecclesiastical trial and a declaratory sentence, 
as we shall see below, when we come to speak of the trial 
which must precede correctional punishments. 

2049. Secondly, in the case of all the other censures, 
namely, those inflicted ab homine, per sententiam specialem, and 
also those a jure which are merely fcrendce sententice (and by 
censures a jure we here mean also those enacted by 
statutes or regulations of the Bishop when made in synod, 
or when enacted out of synod, but by a general mandate), 
the special canonical warning is absolutely required, also in 
the United States, and all countries similarly circumstanced. 
Here is the express law of the Church on this head : 
" Cum speciali sit prohibitione provisum ne quis in aliquem 
excqmmunicationis, (suspensionis et interdicti) sententiam, 
nisi competent i commonitione prcemissa, promulgare prse- 
sumat." : And again : " Nee in specie, nee in genere . . . 
excommunicationum, (suspensionum aut interdicti) sen- 
tentias absque competenti monitione prcemissa promulgent, 
et si contra praesumpserint, injustas noverint esse illas. " 3 

2050. For, as we have seen, correctional punishments are 
medicinal and not merely punitive. Hence, by their very 
nature, they presuppose not simply a crime, but, as we have 
seen above, 4 obstinate persistence in crime, Therefore they 

1 Fessler, der Kirchenbann, p. 21., note. 2 Cap. 61 de appell. (ii. 28.) 

3 Cap. 5 de sent, excom. in 6 (v. 11.) 4 Supra, n. 1886. 



Correctional Punishments, also in the United States. 181 

can be inflicted, not whenever a person is guilty of crime, 
but only when, after being duly admonished, he stubbornly 
continues in his criminal course. It is repugnant to the 
very nature of a censure that it should be imposed upon 
one who has not been duly warned beforehand, and who 
consequently is not contumacious. 

2051. It is true that, in regard to correctional punish 
ments a jure which are fcrcndcs sentential, some canonists 
hold that no previous special warning is needed, on the 
ground that in this case, as in the case of censures a jure 
which are lata scntenticz, the law itself is a perpetual 
warning. But the more common opinion (which is also the 
more probable and practically the only safe opinion) teaches 
that a special warning, distinct and separate from that 
contained in the law, is required in the case. This is also 
clearly indicated in the cap. 26, x., de appelL, which enacts 
that the special warning can be dispensed with only in the 
case of censures incurred ipso facto, as explained above. * 

2052. But it will be asked whether there may be any 
exceptional cases or circumstances that can dispense the 
ecclesiastical judge or Superior who is about to inflict a 
censure (of course we speak not of those censures a jure 
which are incurred ipso facto, since, as we have seen, no 
special warning is essential in their case) from the obligation 
of giving the special warning as just explained. Before 
answering, we premise that, when censures are inflicted as 
purely vindicatory punishments, no previous admonition is 
required. Now only suspension and partial interdict can 
be imposed as vindicatory punishments. 2 

2053. We now answer: According to some of the older 
canonists, the Bishop can omit the warnings in a few 
cases, namely, (a) where there is periculum in mora ; (b) when 

1 Supra, n. 2047. 

3 Cap. Tarn litteris, de test ; Cap. Cum in cunctis 7, de elect ; Clem. I de hseret.; 
Clem. 2 de pcenis. 



1 8 2 Formalities observed in inflicting 

he defends himself against violence, exercised either against 
his own person or the rights of his Church, on the principle 
that he proceeds in the case as a private person acting in 
self-defence and can therefore oppose force by force, that is, 
he is not bound to observe the forms of law, where the un 
just aggressor disregards them ; (c) where both the crime 
and also the incorrigibleness are notorious, v. g., where the 
offender has publicly declared that he will not obey the 
warnings, if given ; for, as the law of the Church enacts, ! 
where an excess or crime is notorious, the ecclesiastical 
judge is not bound to grant a trial, i. c., to hear the defence 
or collect proofs, apart from the notoriety itself, which is 
considered the best proof. 2 

2054. But modern canonists unanimously reject these 
exceptions, advanced by some of the older canonists, as (a) 
being in part contrary to the express letter of the law, (&) 
and wholly opposed to the present discipline of the Church. 3 
Their answer to the first case is that the ecclesiastical judge, 
acting as a private person, has no jurisdiction whatever, and 
therefore can inflict censures only in his official capacity. 
In regard to the second exception, arising from pericnlum in 
mora, they answer that the Sacred Canons have sufficiently 
provided for the case, by allowing the judge, in just such 
emergencies, to contract the three warnings into one per 
emptory, and to make the interval as short as possible. 
Finally, concerning the third case, they reply that the 
present general discipline of the Church has altogether 
abolished the procedure or trial ex notorio, and made the 
usual juridical proceedings obligatory, as was seen, even in 
notorious crimes; that, besides, notoriety can never sufficiently 
establish the incorrigibleness of the notorious offender, 
since, even where a person has, v. g., publicly said that he 
will not obey the Superior s warning, it is possible, nay, 

1 Can. Manifesta 15, C. 2, Q. I ; Cap 9, de ace. * Schmalzg., 1. c., n. 32. 

3 Kober, Excom., pp. 153 sq. 



Correctional Punishments, also in the United States. 181 

^y 

presumable, that he may have done so from bravado or 
want of consideration. * 

2055. We observe here that, absolutely speaking, no pre 
vious canonical admonitions nor precept are required, 
when there is question of inflicting vindicative punishments 
proper, nor even in the case of suspension and interdict 
when imposed as vindicative penalties. * We say, absolutely 
speakitig; for, as we have stated before, it is advisable to 
give the canonical warnings and the precept, even in these 
cases. This is apparent from Articles, II., VII., of the 
Instruction Sacra H&c, June, II, 1880, and Cum Magnopere 
of 1884. This view seems also to be the one adopted by the 
Third Plenary Council of Baltimore, No. 309. It accords 
also well with the aim of ecclesiastical punishments. For, 
in all her punishments, even in those which are vindicative, 
the Church always aims not only at the punishment, but 
also at the amendment of the offender. Hence the Council of 
Trent inculcates upon Bishops the importance of reproving, 
entreating, and rebuking in all kindness, 3 before proceeding to 
punishments, medicinal or punitive. 4 

2056. Some canonists go so far as to maintain that there 
is no real practical difference between medicinal and vindi 
cative measures, so far as the manner of inflicting them is 
concerned ; that, practically speaking and as a rule, the 
canonical warnings and the precept, as well as the trial, are 
to precede vindicative as well as medicinal punishments. 5 

2057. The obligation of giving the canonical warnings 
and the precept certainly bind under pain of mortal sin, or 
sub gravi. Does it, moreover, bind on pain of the invalidity 
of the censure or correctional punishment ? It seems cer- 

1 Kober, der Kirchenbann, p. 155. 

2 Schmalzg. 1. 5, t. 39, n. 30; Reifif. 1. 5, t. 39, n. 28. Excommunication cannot 
be imposed as a vindicative punishment. Arg. cap. Cum in cwictis, 7, de elect ; Cap. 
Sacro, de sent, excom. 

3 Tim. iv. 2. < Cone. Trid , Sess. xiii., cap. I. de Ret. 
6 Droste, 1. c., pp. 71 73. 



1 84 Formalities observed in inflicting 

tain that in the United States, where the Instruction Cum 
Magnopcrc obtains, and in Italy, France, and other countries 
not missionary, where the Instruction Sacra Hcec of 1880 is 
published, both the canonical warnings and the precept are 
obligatory on pain of invalidity of correctional punishments. 
For, as has been observed, according to these Instructions, 
both the warnings and the precept are substantial parts of the 
procedure that must go before the inflicting of repressive 
correctional punishments. 

2058. We say, according to these Instructions ; the question 
therefore presents itself whether also, according to the 
general law of the Church, as laid down in the Sacred Can 
ons, which, though enacted prior to the above Instructions, 
are nevertheless still in force, the canonical warnings are 
obligatory sub poena nnllitatis ? The affirmative is the 
common, more probable, and, at the present day, the only 
safe and true opinion, at least practically speaking. * Thus 
Barbosa, 2 after having stated that, according to some 
canonists, the canonical admonition is required only for the 
licit ness or lawfulness, but not for the validity of the cen 
sure, teaches that the opposite opinion is the sentcntia verior, 
t procnl dnbio communis ct receptissima, as is admitted even 
by some of those who hold the contrary view. 

2059. That this holds also with regard to all missionary 
countries seems evident from the very nature of correctional 
punishments. For these punishments can be inflicted only 
for contumacious persistence in crime. Now there is no 
contumacy, or stubborn disobedience, where no warning 
has been given. 

2060. In order to understand this more fully, we must 
distinguish between the triple and the single peremptory 
admonition. The law of the Church prescribes that the 
ecclesiastical judge must, as a rule, repeat the warning three 

1 Kober, Exc., p. 156; Idem, Susp. p. 59; Reiff., 1. v., t. 39, n. 37. 
* Col 1 -. Deer.. I. 2, t. 28, cap. Reprehens. 26, n. 36. 



Correctional Punishments, also in the United States. 185 

times before he can proceed to impose censures. * We say, 
as a rule; for when there are urgent reasons, the three 
warnings may be contracted into one peremptory warn 
ing. 2 Now the latter, that is, the single peremptory 
warning, is always required on pain of nullity of the 
punishment. 

2061. But the case is different with the threefold warning. 
For it is true that, if the ecclesiastical judge or Superior, 
without urgent reasons, gives but one warning, the correc 
tional punishment inflicted by him will be illicit, and he will 
be guilty of mortal sin and incur various punishments, but 
the censure will, generally speaking, be valid. We say, 
generally speaking ; for in two cases the triple admonition is 
required, not only on pain of the illicitness, but of the in 
validity of the censure, namely: i. where the ecclesiastical 
judge wishes to inflict censure upon a person for communi 
cating with, or not avoiding, another person excommuni 
cated by himself : * 2. when a delegate receives the power 
to inflict censures only on condition that he shall give the 
legitimate prescribed warnings beforehand. 4 

2062. For the rest, it must be borne in mind that the 
three admonitions can never be condensed into one peremp 
tory, except when there are urgent reasons for so doing. 
For if the ecclesiastical judge or Superior arbitrarily or 
even maliciously changes the three warnings into one, he 
commits a mortal sin, and, according to the Sacred Canons, 
becomes ipso facto interdicted ab ingressu ecclesice for a 
month, & that is, he is forbidden to put his foot into a 
church, and cannot there exercise any function of his o rdo,. 
nor assist at divine worship. 6 The Const. Apostolicce Sedis 
of Pope Pius IX. is silent in regard to this penalty. 

2063. As to the manner in which the canonical warnings 

1 Cap. 9 de sent, excom. in 6 (v. n). 2 Ib; Kober. Excom., p. 156. 

3 Cap. 3 et 13 de sent, excom. in 6. 4 Kober, Excom., p. 157. 

5 Cap. 48 de sent, excom. (5, 39^1. 6 Kober, 1. c., p. 158. 



Formalities observed in inflicting 

are given, see above, n. 1774. See also our New Procedure, 
Nos. 70 sq. 

2064. When the canonical admonitions do not produce 
the desired effect, the precept is to be given. When even 
the latter proves of no avail, the reformative punishment 
or censure may be imposed, after due trial and conviction. 
In regard to the precept, see above No. 1789 sq. See also 
our New Procedure, Nos. 72-83. 

ART. II. 
The Trial. 

2065. When the canonical warnings and the precept 
remain unheeded, the obstinacy of the offender becomes 
undoubted. But the Bishop cannot even then proceed 
immediately to inflict the censure or correctional punish 
ment. He is obliged to give the delinquent a canonical 
trial, and only when, upon such a trial, both the crime and 
the offender s persistence in it have been fully and juri 
dically established, can the correctional punishment be 
imposed. 

2066. We shall now proceed to prove this, in the follow 
ing order. First, we shall show that a trial is prescribed by 
the law of the Church, as still in force, prior to the infliction 
of censures; second, that, clown to the year 1880, this trial 
had to be a formal or ordinary, not merely a summary one ; 
third, that at the present day, the Holy See, by the 
Instruction Sacra Hcee, of June 11, 1880, has authorized 
Ordinaries of countries not missionary to use a simpler 
form of trial, whenever it is impossible or inexpedient to ob 
serve all the formalities of solemn canonical trials ; fourth, 
that in the United States, the trial, as outlined in the 
Instruction Cum Magnoperc, must precede not only vindica 
tory punishments, but also censures ; fifth, that in all other 
missionary countries censures must, like vindicatory pun- 



Correctional Punishments, also in the United States. 187 

ishments, be preceded by a trial, which, though not the 
canonical trial, must nevertheless have all the substantial 
formalities of judicial proceedings. 

i . The Necessity of a Trial according to the General Law. 

2067. We shall now discuss the first of these questions. 
The law of the Church, as it existed formerly and exists 
still, prescribes that a trial shall precede the infliction of 
correctional punishments, i. e., censures, no less than of vin 
dicatory. This is expressly laid down in the Sacred Canons. 
Thus Pope Nicholas enacts : " Nemo episcopus . . . excom- 
municet aliquem, antequam causa probetur propter quam eccle- 
siastici canones hoc fieri jubent." St. Augustine, the great 
Bishop of Hippo, explaining the discipline of the Church 
prevalent in his day, says : " Nos vero a communione 
prohibere (i. e., excommunicare) quem^uam non possumus, 
nisi . . . in aliqno ecclesiastico jndicio nominatum atque convic- 
tum" 3 In the same place, a little further on, he inculcates 
this principle with still greater emphasis, and teaches that, 
where offenders cannot be given the benefit of a trial, prior 
to their being excommunicated, it is better to tolerate them 
rather than to separate them from the Church without a 
trial. His words are : " Quibus verbis satis ostendit (Apos- 
tolus Paulus) non temere, aut quomodolibet, sed per judi- 
cium auferendos esse malos ab Ecclesias Communione ; ut si 
per judicium auferri non possunt, tolerentur potius" In like 
manner, Pope Alexander III., (f 1181) decrees: " Si vero 
(clerici) coram episcopo de criminibus in jure confessi sunt, 
sen legitima probatione convicti, dummodo sint talia crimina 
propter quae suspendi debeant vel deponi, non immerito 
suspendendi sunt a suis ordinibus." 

2068. Nay, the Sacred Canons not only forbid the inflic 
tion of censures without a previous trial, but, moreover, de- 

1 Can. II, c. 2, q. I. 2 Can. 18, C. 2, q. i. 3 Ib. 

4 Cap. 4, de Jud. (ii. i). 



1 88 Formalities observed in inflicting 

cree severe penalties against those Superiors who presume 
to inflict these punishments without a trial. Thus Pope 
Nicholas enacts : " Si qtiis autem adversus earn (normam, 
i. e., sine judicio) excommunicaverit aliquem, ille quidem qui 
excommunicatus est, majoris sacerdotis (i. c., judicis appel- 
lationis) auctoritate ad gratiam sanctse communionis redeat : 
is autem, qui non legitime excommunicavit, in tantum ab- 
stineat tempus a sacrosancta communione, quantum majori 
sacerdoti (i. e., judici ad quern) visum fuerit, ut quod injuste 
egit, ipse juste patiatur." * 

2069. As will be observed, these canons speak expressly 
of censures, and enact that they shall not be inflicted with 
out a trial. To these enactments which refer directly to 
correctional punishments, we might add others, namely 
those which enjoin that no punishment whatever, and 
consequently no censures for the general term, punish 
ments, includes correctional as well as vindicatory remedies 
shall be inflicted, save upon a trial. Thus Pope Melchi- 
ades, writing to the Bishops of Spain, enacts, " Neminem 
conclemnetis, ante verum ct jnstnm judiciuin" 2 Again Pope 
Marcellus decrees : " Non oportet quemquam judicari vel 
damnari, priusquam Icgitiinos Jiabcat prcescntcs accusatorcs, 
locumqnc defendendi accipiat ad abluenda crimina" * So also 
does Pope Damasus ordain : " Habetur in decretis sanc 
torum Patrum sancitum, non fore canonicum, quemquam 
sacerdotum judicare, vel damnare, antcquam accusatores canonice 
examinatos prcescntes habeat, locumque defendendi accipiat" 4 

2070. In like manner, the celebrated Cap. Qualiter ct quando, 
issued by Pope Innocent III. in 1216, enjoins that, before 
inflicting any punishment whatever upon his subjects, a 
Prelate must give the latter a full and fair trial. The words 
of this famous decretal are : " Qualiter et quando clebeat 
Praelatus procedere ad inquirendum et puniendum subdi- 

1 Can. II, C. 2, q. I ; Can. 6, C. 24, q. 3. ~ Can. 13. c. 2, q. s. 

3 Can. 5, c. Hi., q. 9. Can. vi. C. 3. q. 9. 



Correctional Punishments, also in the United States. 189 

torum excessus, ex auctoritatibus Veteris et Novi Testa 
ment! colligitur . . . Debet coram Ecclesias senioribus veri- 
tatem diligentius perscrutari . . . Debet igitur esse prcesens is, 
contra qnem facienda est inquisitio, nisi se per contumaciam ab- 
sentavcrit ; et exponenda sunt ei ilia capitula, de quibus fuerit 
inquirenduui, nt facultatem Jiabeat defendendi scipsuvi : et non 
solum dicta, sed etiain nomina ipsa testium sunt ci (lit quid et a 
quo sit dictum appareaf] publicanda, necnon cxccptiones et 
replicationes legit imcz admittendce : neper suppressionem nomi- 
num, infamandi, per exceptionum vero cxclusioncm, deponendi 
falsum audacia prcebeatur" This great constitution still 
obtains, since, as was observed, the Council of Trent 
expressly re-enacted it. * 

2071. Finally Pope Gregory IX., in the decretal Qu&situm, 
issued in 1229, enacts in the most positive manner that 
crimes which are not proven by a trial cannot be punished. 
His words are: " Quassitum est de sacerdotibus vel aliis 
clericis, qui per reatum adulterii, perjurii, homicidii vel 
falsi testimonii, bontijn conscientias rectas perdiderunt. 
Respondemus, quod si proposita crimina or dine judiciario 
comprobata, vel alias notoria non fuerint, non debent hi 
(prater reos homicidii) ... in jam susceptis vel suscipiendis 
ordinibus impediri." 2 

2072. However, it may perhaps be objected that these 
canons are no longer in force ; that they were abrogated 
by the Council of Trent, which in sess. 14, C. i. de Ref. T 
authorizes Bishops to inflict suspension ex informata consci- 
entia, i. e., without any trial. We answer : it is true that, in 
the place quoted, the Council of Trent gives Bishops the 
above power. But it is also true that this power is to be 
used only in the case of occult crimes, and in exceptional and 
extraordinary cases, as explained by us above, Nos. 1279 sq. 
For ordinarily the suspension must be preceded, according 

1 Cone. Trid., sess. 24, C. 5 de Ref, 2 Cap- i; de temp ord (I xi>) 



1 90 Formalities observed in inflicting 

to the same Council, by a trial, as appears from the fact 
that, while this Council, on the one hand, introduces the 
procedure ex informata conscientia, it re-enacts and confirms, 
on the other, as we have seen, x the decretal Qualiter et 
quando, 24 de ace. (v. i) enacted by Pope Innocent III. 
(t 1216), which prescribes that Bishops and Superiors shall 
not inflict any punishment, whether vindicative or correc 
tional except upon a canonical trial. 

2073. Finally, the law of the Church requiring a trial 
before the infliction of censures, except in the case of 
suspension ex informata conscientia, was re-enacted in the 
Instructions Sacra Hcec of 1880, and Cum Magnopere of 1884, 
the former of which forms the present law for Catholic or 
non-missionary countries, the latter for the United States. 
For, according to these Instructions, all repressive punish 
ments, i. e., not only vindicatory, but also correctional, o^d 
consequently also censures, must be preceded, as \\e have al 
ready seen, not only by the warnings and the precept, but also 
by a trial, to be conducted in the manner outlined by these 
documents. 

2074. It is, therefore, beyond doubt, that, except in the 
case where sentences ex informata conscientia are allowed, 
all repressive punishments, whether punitive or correctional, 
must at the present day, as in former times, be preceded by 
;a trial. This is, in fact, based upon the very law of nature, 
which forbids any one to be condemned or punished, unless 
he has been heard in his own defence, i. e., unless a trial 
has been granted him. For our natural sense of justice 
tells us that the Superior cannot justly inflict punishment, 
unless he has been rendered morally certain of the offence, 
i. e., unless the offence has been proven before him. Con 
sequently the defence as well as the prosecution must be 
heard by him. 2 Therefore not even the Pope himself 

1 Supra, n. 1305. 2 Supra, n. 704, 705, 706. 



Correctional Punishments, also in the United States. 1 9 1 

can inflict punishment, without observing the substantial 
formalities of trials. " Nee Nos," says Pope Gregory IX., 
" contra inauditam partem aliquid diffinire possumus." * 
The previous trial is so indispensable that a censure (except 
suspension inflicted ex in format a conscientia^) imposed with 
out it is absolutely null and void, also in missionary 
countries, as we shall see. 

2075. Nay, the censure or correctional punishment is in 
valid, not only when the trial itself is entirely omitted, but 
also when an essential formality prescribed for trials is not 
observed during the trial ; v. g., where the citation is not 
made ; if the accused is not allowed full liberty to defend 
himself ; if the canonical exceptions submitted by the 
accused are rejected. Thus Reiffenstul 2 teaches : " Red- 
ditur censura invalida ob neglectum substantialem ordinem ; 
ut si judex earn ferat nulla nee unica quidem prsemissa 
admonitione, vel si omittatur citatio rei, isque ad sui defen- 
sionem non admittatur." 

2076. The same holds, if there are no juridical or canonical 
proofs of the crime, 3 v. g., if there are not, as a rule, two 
witnesses who are above all suspicion, and that even 
though the Bishop or proper Superior, by facts which have 
come to his knowledge extrajudicially, i. e., outside of the 
customary trial, is fully convinced, personally and privately, 
that the crime has been committed by the defendant ; 4 for, 
according to the old canonical axiom, " quod non est in 
actis, non est in mundo," so far as the external forum is 
concerned. Suarez 5 says : " Judex humanus non potest de 
sibi occultis judicare ; est autem occulta (causa) quoad 
effectum ferendi sententiam, quamdiu juridice probata non 
est, etiamsi alioquin privatim not a sit illi homini qui judex est. 1 

1 Cap. i, de caus. poss. (ii. 12) ; Glossa, ib., v. diffinire. 2 Lib. v., n. t. 39, 37. 

3 Cap. 10, de const, (i. 2^; Cap. 5, de in integr. rest. (i. 41) ; Clem. 2 de V. S. 
<v. 11); Kober, Excom., p. 165. 

4 Can. 2, 3. c. 6, q. 2, 5 Disp. 4, sect. 7, n. 4. 



1C; 2 Formalities observed in inflicting 

2077. The only case (besides that ex informata conscientia) 
where the trial is not required as an essential condition for 
inflicting a censure is when the crime is so notorious, both 
materially and formally, as to admit of no doubt or excuse ; 
though, as we have seen above, even in this case, it is now 
the universal custom and practice of ecclesiastical courts to 
give the accused, as a rule, a trial. See our New Procedure, 
Nos. 85 sq. 

2. The Formalities of a Trial, according to the Sacred Canons. 

2078. We now come to the second question, which relates 
to the kind of trial that precedes censures. Our proposition 
is that, down to the year 1880, this trial had to be a formal or 
ordinary canonical trial (judicinm ordinarium, plenum, solem- 
ne) and not merely a summary one. To prove this assertion, 
we need but repeat here the common teaching of canon 
ists, as stated above, Vol. II., No. 1275, "that, apart from 
a special mandate of the Pope, the formalities of solemn or 
ordinary canonical trials must always be observed in crim 
inal causes i. e., in causes where a punishment, vindicatory 
or correctional, is to be imposed the summary trial being 
applicable only to civil causes of minor importance." This, 
of course, applies to countries where canon law obtains. 
For the formalities of ordinary canonical trials, see Vol. II.. 
Nos. 932, sq., second edition, 1888. 

3. The Trial according to the Instruction of June 11, 1880. 

2079. Our third thesis is that, at the present day, the 
Holy See has authorized Ordinaries of non-missionary 
countries, where canon law is in force, to use a simpler 
form, whenever it is impossible or inexpedient to observe 
all the formalities of solemn trials. This is proved from the 
express words of the Instruction Sacra Hczc, June 11, 1880, of 

1 Supra, n. 1263. 



Correctional Punishments, also in the United States. 193 

the S. C. EE. et RR : " Sacra haec EE. et RR. Congregatio 
. . . constituit facultatem Ordinariis expresse concedere ut 
formas magis oeconomicas adhibere valeant in exercitio 
suas disciplinaris jurisdictionis super clericis " (Prooem.) 
Again the same Instruction, Art. IX., says: " Quoad media 
poenalia, animadvertant Reverendissimi Ordinarii pracsenti 
instructione hand derogatum esse judiciorum solemnitatibus, per 
Sacros Canones, per Apostolicas Constitutiones, ct alias eccle- 
siasticas dispositiones imperatis, quatenus easdem libere effica- 
citerque applicari queant ; sed ceconomicag formas consulere 
intendunt illis casibus curiisque, in qiiibus solemncs processus 
aut adhiberi ne queant, ant non expedire videantur" 

2080. Hence the above Ordinaries are bound at present, 
prior to inflicting a censure or a vindicatory punishment, to 
give the accused a formal or regular canonical trial, unless 
this is impossible or inexpedient. This also proves clearly 
what we have asserted in the preceding proposition, to wit, 
that down to 1880, when the Instruction Sacra Hcec was 
issued, the trial which preceded censures as well as puni 
tive remedies was of necessity a formal or solemn can 
onical trial, not merely a summary one. For it would have 
been absurd otherwise for the S. C. EE. et RR., in the 
above Instruction, to authorize Ordinaries to lay aside the 
solemn trial, and to use a simpler one. What need was 
there for empowering Bishops to omit the formal trial 
and substitute in its stead a simpler one, if they were 
under no obligation to give the formal or solemn trial? 1 
See Vol. II. Nos. 1277, 1278. 

4. The Trial in the United States according to the Instructions 

of 1878 and 1884. 

2081. Our fourth proposition is, that in the United States 
the trial, as outlined in the Instruction Cum Magnopere of 
1884, must precede not only vindicatory punishments, 

1 Supra, vol. ii., n. 1277-1278. 



1 94 Formalities observed in inflicting 

but also censures. This is clearly pointed out by the 
Instruction itself, as we have already shown. The very 
teaching of the Instruction leaves no cloubt on the matter. 
It is : " Instructio S. C. cle Prop. Fide, de modo servando in 
cognoscendis et defmiendis causis criminalibus et dis- 
ciplinaribus clericorum in Fcederatis Statibus Americae 
Septentrionalis." The trial, therefore, prescribed in this 
Instruction, is to be observed " (de modo servando] " or given, 
throughout the United States, in all criminal and disciplinary 
causes of Ecclesiastics. Now, by criminal and disciplinary 
causes, as has been seen, are meant all causes whatever 
where a repressive punishment, i.e., not only a punitive, 
but also a censure, or correctional remedy is to be inflicted. 
This is placed in a still clearer light by Article IX. of said 
Instruction, which provides that the power to proceed ex 
informata conscicntia remains in full force. The plain 
inference, therefore, is, that in all other cases the trial must 
precede the punishment, be it correctional or vindicatory. 

2082. It should be observed that this same Instruction 
Cum Magnopcrc, in Article XII., enacts that, in dioceses 
where the curia cannot as yet be established, the trial can 
be conducted in the manner laid down in the Instruction 
Quamvis of 1878. See our New Procedure, Art. XII., Nos. 
177, 178 sq. 

5 . The Trial in other Missionary Countries. 

2083. Our last thesis relates to missionary countries, such 
as England, Ireland, Scotland, Canada, Australia, and India, 
where canon law does not fully obtain, and where, more 
over, no special form of trial obtains. We assert that in all 
these countries censures must, like vindicatory punish 
ments, be preceded by a trial, which, though not the 
canonical trial, must nevertheless have all the substantial 
formalities of judicial proceedings, or of a full and fair trial. 
This is apparent from the fact that, apart from all positive 



Correctional Punishments, also in the United States. 195 

legislation of the Church, the law of nature, which obtains 
also in missionary countries, forbids, as has been noted, any 
one to be punished, either with a reformative or punitive 
punishment, save after a fair trial and a judicial hearing-. 
This trial, however, need not necessarily be always a 
canonical trial, formal or summary, in the strict sense of the 
word. For missionary countries are not supposed to have a 
complete canonical organization. They are supposed to be 
in a state of transition going through the process of 
attaining gradually to the full, regular organization pre 
scribed by canon law. Hence the non-essential formalities 
of canon law in regard to trials do not fully obtain in these 
places. 

2084. Yet the trial must be full and fair. Consequently, 
as we said above, censures must, in missionary countries, be 
preceded by a trial, which, though not the canonical trial, 
must nevertheless Jiave all the substantial formalities of a full 
and fair trial. This is guaranteed to every accused by the 
law of nature itself, which forbids any one to be condemned 
or punished, unless he has first been heard in his own 
defence. Now, what are chiefly these substantial formalities, 
required by the very law of nature to constitute a trial ? I. 
The defendant must be cited for trial, in order that he may 
be able to defend himself. 2. He must be allowed full and 
unrestricted liberty to defend himself. 3. Consequently, the 
charges, the testimony of the witnesses, etc., as prescribed 
in the Cap. Qualiter et quando, must be communicated 
to him ; otherwise he could not defend himself. 4. All 
reasonable exceptions made by him must be admitted. 5. 
Finally, the proofs of guilt must be as full and conclusive 
as in formal canonical trials. * 

1 Supra, vol. ii., n. 693, 1270. 



196 Formalities observed in inflicting 

6. The Trials in the case of Censures inflicted " ipso jure." 

2085. What has been thus far said concerning the 
obligation of the trial or judicial proceeding applies not to 
censures a jure, which are latce sent entice ^ but only to 
censures inflicted ab Jwmine per sententiam specialem, and to 
censures a jure, (as to what we mean by censures a jure, see 
above, No. 1974), which are ferendce sententio*. For, as we 
have seen, correctional punishments a jure, when latce 
sententicz, are incurred in for o interno, without any previous 
special admonition, and without a trial. 

2086. We say, in foro interno ; for in foro externo the 
censure does not hold, except when a trial has preceded. In 
other words, in order that the censure in question may 
produce its effects in foro externo, the bishop must give the 
offender a trial, and prove the crime by canonical proofs, 
obtained at the trial, and then pronounce declaratory 
sentence, i.e., pass sentence declaring fa&\& has committed 
the crime, and really incurred ipso facto the censure. 

2087. Hence, so far as regards the forum externum, there 
is, practically speaking, but little difference between cen 
sures which are latce sent entice, and the other censures ; for, 
in the case of censures latce sent entice, if they are to hold in 
foro externo, there must always be a juridical investigation 
or trial. J Moreover, an appeal in suspensive lies against the 
above declaratory sentence. 2 

ART. III. 
The Sentence. 

2088. Hitherto we have shown that a correctional 
punishment cannot be inflicted, save (a) after the canonical 
warning, and the precept, and (b) after due trial. Having 
spoken of these two essential prerequisites, it but remains 

1 Clem. 2 de Poen. (v. 8) ; Walter, p. 274. 2 Pierantonelli, I.e., p. 218. 



Correctional Punishments, also in the United States. 197 

to explain the formalities to be observed in the very act 
by which the censure is inflicted, that is, in the sentence by 
which the ecclesiastical judge imposes the censure. When 
the Bishop or ecclesiastical Superior, having given the 
canonical warning, the precept, and also a trial, finds the 
guilt and the stubborn persistence in crime juridically 
proven, he can then, but not before, proceed to pronounce 
sentence inflicting censure. In pronouncing this sentence, 
he is, also in the United States, obliged to observe certain 
formalities, which are partly peculiar to censures and partly 
the same as those which must be observed in all final sen 
tences, as described above. * 

i . Weighing of the Evidence. 

2089. Before pronouncing this final sentence, the judge 
should carefully sift and weigh the evidence produced at 
the trial, in order that he may duly ascertain whether the 
guilt is legally proven or not. In other words, he is bound 
to ascertain whether there is, juridically speaking, full and 
complete proof (probatio plena] of the crime. Full proof is 
required for conviction and condemnation in criminal and 
disciplinary causes,, no matter whether the trial or pro 
ceedings are ordinary or but summary. It is expressly 
enacted in the Clem. Cap. Scepe 2 de V. S. (v. xi.) that, in 
summary trials, the proofs submitted by the prosecutor in 
support of his case must be as full and complete as in 
formal canonical trials. * 

2090. This weighing of the evidence, by the ecclesiastical 
judge, is no easy task. He has usually a large mass of 
evidence before him, and that of the most conflicting kind 

1 Vol. ii., n. 1174 sq. 

* Supra, n. 1270. Hence also the Instr. Sacra /ft?f and Cum Magnopere, art. xvi., 
enact : " Ad admittendam vero rei culpabilitatem necessaria est probatio legalist 
The trial prescribed by these Instructions partakes more of the summary than of 
the formal canonical trial. 



198 Formalities observed in inflicting 

the evidence of the prosecution and the defense being 
naturally diametrically opposed one to the other. He must 
examine and appreciate the force of this evidence, not 
according to his own feelings, inclinations, or likes and dis 
likes, but solely according to the rules laid down by the 
Church in regard to the force of evidence. He should 
weigh with equal impartiality the evidence which is for 
and that which is against the accused. For the object of the 
trial is not merely to discover the guilt, but also the innocence 
of the accused. Thus the S. C. de Prop. Fide, in the Instruc 
tion Cum Magnopcre, beautifully says : " Processus ex officio 
instruitur . . . ct usque ad terminum perducitur eo consilio, 
ut omni studio ac prudentia, vcritas detegatur, ac turn de 
crimine, turn dc rcitatc, vcl innocentia accusati causa clique tur" 

2091. If, upon due and serious examination of the 
evidence, the ecclesiastical judge finds that the proofs are 
equally probable or strong on both sides, namely on the side of 
innocence as well as guilt, so that it appears just as prob 
able that the accused is innocent as that he is guilty, it 
is certain that he must be absolved or acquitted ; nay, 
he must be absolved, even though the proofs of guilt are 
much more probable than those of innocence. For both 
the natural and the positive law forbid any one to be 
condemned unless his guilt has been established as certain, 
not merely as probable. 2 In fact, both in formal and sum 
mary trials, the accused must be acquitted wherever there 
is any reasonable doubt as to his guilt. This is thus stated 
by the Instructions Sacra Hcec and Cum Magnopcre : " ad ad- 
mittendam vero rei culpabilitatem necessaria est probatio 
legalis, qua? us moment is constare debet, quibus veritas vere 
demonstrata elucescat, vel saltern moralis convictio inducatur 
quocunquc rationabili dubio oppositi remoto" 

2092. Here we remark, in passing, that t\ie probatio legalis 

1 Art. xi. 2 Bouix, de Jud., vol. ii, p. 228. 3 Art. xvi. 



Correctional Punishments, also in the United States. 199 

means the proofs or evidence obtained at the trial i.e., 
the allcgata et probata in judicio, or, as St. Thomas says : 
u ea que in judicio proponuntur et probantur." The 
private information of the judge is of no account. 2 

2093. But even when the ecclesiastical judge finds the 
guilt fully and juridically proven, he should not proceed 
forthwith to pronounce sentence imposing the censure 
or punishment which the Sacred Canons, or the decrees 
of plenary, provincial, or diocesan synods have laid down 
for the offence. He should, first, consider the merits and 
circumstances of the case, and the degree of malice, in order 
that he may see whether there are any extenuating or 
aggravating circumstances; v.g., whether the accused 
acted from great provocation or sudden impulse ; or 
whether he acted with cool premeditation or studied 
malice. For according as he finds greater or less malice, he 
should inflict a severer or milder degree of punishment. He 
should, however, as was seen above, always incline to mercy 
rather than to severity, and sin rather on the side of clem 
ency than of rigor. He should adopt as his rule of action 
the golden mean of being neither too severe nor too 
mild. 3 

2094. Above all, 4 should the ecclesiastical judge, in 
weighing the evidence, determining the degree of punish 
ment, and framing the sentence to be pronounced, be 
careful not to allow himself to be swayed by any personal 
motives whatever, 5 v.g., of hatred, ill-will, dislike, favorit 
ism. His sole motives should be zeal, charity, love of 

1 Pellegrino, 1. c., p. 179, n. 36, says : " Dico, quod clebet ferri sententia per 
judicem secundum allegata et probata in processu, (in judicio), non secundum con- 
scientiam privatam." Can. Judicet 4, c. 3, q. 7. 

2 Supra, n. 747, 728. 3 Pellegr. 1. c.. n. 53. 54. 

4 St. Ambrose in the canon Judicet 4, c. 3, q. 7, beautifully says : Judicet ille, 
qui ad pronuntiandum nullo odio, nulla offensione, nulla levitate ducatur." 

5 Pope Gregory the Great says : " Quicumque hostili odio, vel inimicitiis in 
judicando ducitur pervertit judicium Christi." (Can. 79, c. 1 1, q. 3.) 



200 Formalities observed in inflicting 

justice, to bring back the offender to the path of duty, and 
to deter others from crime. * 

2095. Here it seems also opportune to recall what we 
have said above, 2 that, by the law of the Church, an eccle 
siastical judge, whether ordinary or delegated, who, 
knowingly, pronounces an unjust sentence v.g., who 
condemns a person whose guilt is only probably, and not 
certainly, established or commits some other act of 
injustice in the course of the trial, whether through fear, 
favoritism, hatred, or hope of gain, is bound to pay the party 
whom he has injured all the expenses of the trial, and also all 
other losses occasioned by it. This principle is also clearly 
retained and indicated in our Instruction Cum Magnopere of 
1884: "Haud ita facile Curiac Episcopates acl damna vel 
expensas resarciendas damnari potcrunt ; quoties enim ex 
processu informative indicia sufficient ad agendum contra 
inquisitum appareant, judex appellations a talibus clamna- 
tionibus abstineat, cum ea indicia sufficiunt ut in judice, qui 
antea processit, ea vera et propria calumnia excludatur, quse 
ad hujusmodi damnationem requiritur." 3 From what has 
been said, it is plain that, even after the trial is closed, the 
ecclesiastical judge should take sufficient time to frame the 
sentence with great care and prudence, before he pronoun 
ces it. 

2. Formalities of the Sentence. 

2096. It is for the purpose of preventing the ecclesiastical 
judge from pronouncing final sentence, inflicting punish 
ment or censure, without duly taking into consideration 
what has been said above, that the law has always com 
manded, and still commands him, to observe certain 
formalities when he pronounces such sentence. As in a 
number of other matters, so also in the trial and sentence 
by which correctional punishments, especially excommuni- 

1 Ptllegr., 1. c., n. 4. ^ Supra, n. 1205 ; Cf. Pellegr., 1. c., n. 3. a Art. xliv. 



Correctional Punishments, also in the United States. 201 

cation, were inflicted, the Church adopted the judicial 
formalities of the Roman law. Thus St. Gregory the 
Great, in the Instructions which he gave his legate, whom 
he sent to Spain, in order to decide various judicial contro 
versies that had arisen there, points to the formalities which 
must be observed, according to the Roman law, by secular 
judges, when they pronounce final sentence, and expressly 
commands him to observe them in passing juridical sentence 
as an ecclesiastical judge, in ecclesiastical causes. * 

2097. It is, then, safe to assume that, from the time of 
Pope Gregory the Great, ecclesiastical judges were bound, 
in passing sentence of excommunication, or suspension, or 
interdict, to observe all the formalities which the Roman 
law, and, afterwards, the canon law, prescribed for the 
pronouncing of all final judicial sentences whatever. 2 These 
formalities are still obligatory, and form the present law of 
the Church. They differ slightly, according as the trial is 
formal or merely summary. We have already fully ex 
plained them above, under No. 1174 sq. 

2098. Although these regulations were designed to 
prevent hasty and inconsiderate sentences, yet, as Kober * 
testifies, it came to pass that many censures were unjustly 
inflicted, for the reason that some Prelates pronounced 
sentence, inflicting these severe punishments, without 
taking duly into account the circumstances of the case, 
and without observing the laws of justice and equity. 
These abuses and injustices were brought before the Gen 
eral Council, held at Lyons, in 1245, by Pope Innocent IV. 
The Council was urged to remedy these evils. According 
ly, that body took the matter into serious consideration, 
and, in its celebrated decree, called Cum Medicinalis i, de 
sent. exc. in 6 (v. xi.), issued strict regulations, enjoining 
upon Prelates, in passing sentence of excommunication, 

1 Can. 7, c. ii , q. I ; Kober, Excom., p. 169. 3 Ib. 3 Ib.., p. 170. 



2O2 Formalities observed in inflicting 

suspension, or interdict, the obligation of observing most 
carefully the formalities already in force, and adding new 
ones. * 

2099. This constitution still forms the law of the Church, 
and is, as we shall see, re-enacted in the Instructions Sacra 
Hcec and Cum Magnopcre. It enacts, under severe penalties, 
that the sentence should not only be in writing, and that a 
copy of it should be given the accused, if he asks for it, but, 
moreover, that it shall state clearly and distinctly the 
particular crime or act for which the censure is imposed, in 
order that it may appear, from the sentence itself, whether 
the crime is sufficiently grave to deserve so severe a punish 
ment as a censure. 2 

3000. This latter regulation was a new enactment ; 3 for, 
prior to this law, ecclesiastical judges were not bound, even 
in criminal causes, to se f forth, in their final sentence, the 
reasons or crimes fo^ v. ,-... i^hment. * j. t 
the present day, ecclesiastical juagc^ mu^i slate the offence 
in their sentence, not only when they inflict censures, but 
also in all other sentences by which they impose a vindi 
catory punishment. 

3001. We have, thus far, given a brief and imperfect 
outline of the legislation of the Church on the question 
under discussion. It now remains to group together and 
briefly explain the various formalities which were enacted 
from time to time, and which are still to be observed at the 
present day, in the pronouncing of final penal sentence, not 
only in formal, but also in summary trials. 5 These formali 
ties of the final sentence in question, are chiefly: i. It 

1 Kober, Excom., p. 172. 

2 Quisquis igitur excommunicat .... causant excommunicationis expresse con- 
scribat, propter quam excommunicatio proferattir." Cap. Cum Medicinalis, I, de 
sent, excom. in 6 (v. n). 

3 Ib. 4 Cap. 16, de sent. (ii. 27). 

fi These formalities are the same, no matter whether the sentence inflicts a 
censure or a vindicatory punishment. 



Correctional Punishments, also in the United States. 203 

must be drawn up in writing ; otherwise, it will be invalid. l 
3002. 2. It should be read, not merely handed or sent, 
to the accused ; otherwise, it is void. 2 For, as Cardinal cle 
Luca says, it is not sufficient that it be in writing ; it is, 
moreover, necessary that it shall be read from the paper 
written out beforehand. 3 Hence the sentence which, 
though in writing, is simply handed or sent to the defend 
ant, without having been first read and thus published to 
him, is invalid. 4 In like manner, the sentence which is 
pronounced, indeed, in the presence of both parties, but 
which was not written out beforehand, is invalid. 6 For, as 
the Roman law adopted by the Church says: " Huic 
adjicimus sanctioni, ut sententia, quee dicta fuerit, cum 
scripta non esset, nee nomen quidem sententiae habere 
mereatur." 6 

3003 ._ 3 . It should be pronounced by the judge himself, 4. 
and that in the presence of the parties *>., of the prosecu 
tion and the defence, unless they are contumaciously absent. 
Therefore, if the sentence were pronounced in the absence 
of the accused, it would be invalid, 7 unless the latter were 
contumaciously absent. 5. Wherefore, also, the accused must 
be cited to hear the final sentence, as explained already ; 8 
otherwise the sentence would be invalid. 9 6. It must be 
pronounced on the day, at the hour and place designated in 
the citation sent to the accused to hear the final sentence ; 
otherwise it would be invalid, since it would be regarded as 
having been pronounced, non citata parted Where, however, 
the defendant, though properly cited, is contumaciously 

1 L. Statutis 3, C. de sent, ex per. (7, 44) ; Cap. Cum Medicinalis cit. 

2 L. Statutis cit. 

3 Card, de Luca, 1. 15, de jud., disc, xxxvi., n. 7, 8, 10, Venetiis, 1734. 

4 Pellegr., Praxis Vicar., P. ii., S. iii., Subs, i., n. 65, Venetiis, 1706. 

5 Konig, Jus can., 1. ii., t. 27, n. 48. * L. 3, C. de sent, ex per. (vii. 44.) 

i L. de unoquoque ft", de re jud. ; Pellegr., I.e., n. 27. * Supra, vol. ii., n. 1174. 

9 Cap. Dudum 2. de elect. ; Pellegr., I.e., n. 15, p. 174. 

10 L. aut qui aliter, ff. quod vi; Pellegr., I.e., 176, n. 27. 



2O4 Formalities observed in inflicting 

absent, the ecclesiastical judge can pronounce the sentence 
at any time, after the time fixed for the sentence in the 
citation has expired. 

3004. 7. It must state the crime or act for which the 
punishment is inflicted. This has been sufficiently explained 
already. * 8. It should not be pronounced on Sundays or 
holy-days of obligation ; otherwise it would be invalid. 2 9. 
Finally, a copy of the sentence must be given to the person 
condemned, if the latter asks for it. This copy must be 
properly authenticated and correspond word for word, 
both as to date and contents, with the orignal. See above 
Vol. II., Nos. 1174-1184. 

3. Formalities of Sentences in the United States. 

3005. Q. What formalities are to be observed in the 
United States, by Bishops or Vicars-General, when they 
pronounce a final sentence imposing a censure or correc 
tional punishment ? 

A. We have said above that the formalities there 
described are to be complied with, not only in formal, but 
also in summary canonical trials. From this it would seem 
to follow, as a matter of course, that these formalities must 
also be observed by ecclesiastical judges in the United 
States, where the Instruction Cum Magnopere obtains. For 
the trial prescribed in this Instruction, though a canonical 
trial in the strict sense of the term, partakes more of the 
summary than of the formal canonical process. However,, 
all doubt in the premises is removed by the Instruction 
itself. For, as we say above, it virtually re-enacts the 
formalities prescribed by the general law of the Church. 

3006. In fact, the enactments contained in this Instruction 
regarding the pronouncing of final sentences are : i. " Turn 
omnia (acta etc.) ad Ordinarium remittuntur qui, ubi in 

1 Supra, n. 1181, 1182. ; Schmalzg., 1. 2, t. 27, n. 6l. 
* Supra, n. Il8o; Pellegr., I.e., n. 22. 



Correctional Punishments, also in the United States. 205 

plenam causae cognitionem devenerit diem constituet in qua 
sententia dicendaest." ! 2. " Prasstituta die ab Episcopo vel 
Vicario General!, prassente procuratore fiscal! et defensore 
sententia pronunciatur, ejusque pars dispositiva Cancellario 
dictatur, expressa mentione facta, si damnation! sit locus, 
sanctionis canonicse quse contra imputatum applicatur." 3 3. 
" Sententia reo intimetur." 8 

3007. Now, from these dispositions, it is plain that the 
ecclesiastical judge in the United States is obliged to 
observe the following formalities, in pronouncing final 
sentence by which he inflicts a correctional punishment. 4 
i. The sentence shall be drawn up in writing, 5 2. read in 
court and dictated to the chancellor or secretary, 6 3. in 
the presence of the diocesan prosecutor and the defendant s 
advocate. 7 The defendant himself may or may not be 
present, as he chooses. 4. Hence both the prosecutor and 
the advocate of the accused are to be invited or cited to 
appear in court at the time and place specified, to hear the 
final sentence pronounced. 

3008. 5. According to the instruction Sacra Hac of i88o r 
of which our Instruction Cum Magnopcre is, with but few 
exceptions, an exact copy, the prosecutor and the defend 
ant s advocate, on appearing in court on the day fixed for 
the final sentence, can plead their respective cause orally 
before the court, prior to the pronouncing of final sentence. 
Thus the Instruction Sacra /fesays : (a) " Qui (ordinarius) 
diem constituit in qua disceptanda ct resolvenda sit (causa). " 8 
(&) " Die constituta proponitur causa coram Vicario 
Generali, interessentibus Procuratore fiscali, defensore et 
Cancellario." 9 (c) " Post votum Procuratoris Fisci et deduc- 
tiones defensionis profertur sententia, etc." 10 

1 Art. xxxiii. z Art. xxxiv. 3 Art. xxxv. 

4 The same formalities are to be observed in the sentence inflicting vindicative 
penalties. 

5 Art. xxxiv. 6 Ib. 7 Ib. 8 Art. xxxiii. 9 Art. xxxiv. 10 Art. xxxv. 



206 Formalities observed in inflicting 

3009. In our Instruction Cum Magnopere, this is not 
allowed, special provision being however made in Article 
XXXIII., 1 whereby the aforesaid final arguments or plead 
ings shall be made beforehand, and that in writing. 
The Instruction Cum Magnopere, as originally drawn up for 
the United States, and shown to our Prelates assembled in 
Rome in November 1883, did not differ in regard to the 
matter under discussion from the enactments of the Instruc 
tion Sacra Hcec. It was changed to its present wording at 
the suggestion of some of our Prelates, who represented 
that the oral pleadings of the parties or of the advocates 
might give rise in the United States to an odious class of 
ecclesiastical advocates, whose interest it would be to 
multiply controversies, and draw them out to an indefinite 
length of time. 

3010. 6. It shall expressly state the offence for which 
the punishment is inflicted. 7. It shall also expressly 
mention the particular law of the Church authorizing the 
infliction of punishment in the case. For, as has been 
shown, 2 no offence can be punished by the ecclesiastical 
judge, unless it is expressly designated by an ecclesiastical 
law as punishable. 8. It shall be pronounced at the time 
and place designated in the citation for sentence. 9. Finally, 
a copy of the sentence, properly authenticated, and corres 
ponding word for word with the original, is to be sent to 
the person condemned, in the manner described in Article 
XIV. of the Instruction Cum Magnopere. 

3011. As already remarked, these formalities are obliga 
tory, not only in sentences by which censures are inflicted, 
but also in sentences by which vindicatory punishments are 
imposed. For the Instruction Cum Magnopere lays down 

1 The words are: " Postquam Procurator fiscalis suas conclusiones ediderit, 
eredem defensori rei communicandse sunt ut ad easdem, si placuerit, in scriptis 
respondeat." 

2 Supra, n, 1699. 



Correctional Punishments, also in the United States. 207 

the mode of procedure which is to be observed in inflicting 
both correctional and vindicatory punishments. 

4. Penalties incurred for violating these Formalities. 

3012. Here it may be objected that, in the opinion of a 
number of canonists, three of the above formalities, 
namely, (a) that the sentence be in writing, (b) that the crime 
be set forth, (c) and that an authentic copy of the sentence 
be given to the person condemned bind only on pain of 
mortal sin and illicitness, but not invalidity, of the sentence, 
when there is question merely of inflicting correctional 
punishments, i.e., censures, and not vindicatory. Before 
answering this objection, we remark that all canonists agree 
that the Bishop or ecclesiastical judge who presumes to 
violate any of these formalities commits a mortal sin, nay, a 
very grievous mortal sin, being guilty of a violation of a 
grave and very important law of the Church. On this 
head there is no doubt, no controversy. In fact, Pope 
Innocent IV., by whom the formalities are prescribed, in 
the celebrated Constitution Cum Medicinalis, inculcates their 
observance in so strict and solemn a manner, and decrees 
such severe punishments against ecclesiastical judges who 
presume to violate them, as to leave no doubt whatever on 
the subject. 

3013. We shall now answer the objection. It is true that 
a number of canonists hold the above opinion. * Their 
chief argument is, that Pope Innocent IV. states in the Cap. 
Cum Medicinalis, that a person who is visited with censure, 
without the above formalities, shall, upon having recourse 
to the judge of appeal, v.g., to the Metropolitan, be imme 
diately released from the sentence. Hence, they say, the 
sentence in the case, though grievously sinful and illicit, is 
not invalid, otherwise there would be no necessity for 

1 Cf. Craiss., n. 6417 



208 Formalities observed in inflicting 

authorizing the judge of appeal to revoke it. But it is also 
true that the opposite opinion, which is maintained by 
Kober and other eminent canonists, and which teaches that 
the formalities in question bind, on pain of nullity of the 
sentence and the punishment inflicted by it seems based 
on much sounder arguments and, consequently, much more 
probable. In fact, the law, (i.e., not only the Cap. Cum 
Mcdicinalis, but also the Instruction Cum Magnopere, of 
1884), expressly prescribes these formalities, and that for 
good reasons, as we have shown. The ecclesiastical judge 
who disregards them oversteps the bounds of his legitimate 
authority. Hence the following principle of canon law 
applies: " Quae contra jus fiunt, debent utique/r0 infectis 



3014. And in reality, as we have seen, both the Roman 
and the canon law expressly declare that all judicial sen 
tences whatever, (consequently, also those which impose censures,) 
which are pronounced without the prescribed formalities, as 
explained above, are null and void. Why the sentence im 
posing excommunication, or suspension, or interdict, should 
form an exception to this rule, especially when one remem 
bers that the law nowhere makes the exception, seems 
incomprehensible, particularly when we call to mind that 
these censures are most severe punishments, and that, 
consequently, it must be a matter of grave solicitude to the 
Church to see that these sentences are not pronounced 
without mature deliberation, and therefore, not without 
the prescribed formalities. In fact, how much importance 
the Church attaches to these formalities, and how anxious 
she is that they should be carefully observed, is manifest 
from the strict and peremptory manner in which she orders 
them to be observed, and from the severe punishments she 

1 Reg. 64, de Reg. jur. in 6 (v. xii.); Barbosa, coll. in 1. 5, sexti Deer., Reg 
64, explaining this rule, says : Paria enim sunt invalids fieri, et non fieri ; 
ii;~iin : iiilns enirn cormit, omissa forma legis. 



Correctional Punishments, also in the United States. 209 

inflicts on those ecclesiastical judges who dare to violate 
them. J 

3015. Besides, the argument of those who hold the oppo 
site view is not conclusive. For the phrase of Pope Innocent 
IV., Superior vero, ad quern recur ritur, sententiam ipsam sine 
difficult ate relax ans, etc., 2 means simply that, when a 
sentence imposing a censure is pronounced without the 
formalities in question, the person so sentenced cannot, as 
a rule, of /its own accord, or by his own private authority, 
consider it invalid and disregard it, but that he should leave 
the decision to the Superior, that is, to the judge of appeal, 
to whom he should have recourse, with the request that the 
sentence be declared null and void. The interests of order 
and authority evidently require that a person who is pun 
ished should not, except for very grave reasons, take it 
upon himself to disregard a sentence, even though null, ex 
cept where it is patent to everybody that it is invalid. He 
should, therefore, as a rule, apply to the judge of appeal, in 
order to have the nullity of the sentence officially declared 
by him. 3 

3016. Q. What are the chief punishments incurred by ec 
clesiastical judges, also in the United States, who presume to 
disregard all or any of the above formalities, prescribed 
by Pope Innocent IV. in the Constitution Cum Mcdicinalis? 

A. The following: I. The person censured should, at 
once, 4 i.e., without being required to make amends, or to 
give any assurance of amendment, and without any previous 
examination of the merits of the appeal, be absolved of the 
censure by the person to whom he appeals. Whether this 
enactment has been modified by the decree of Clement 

1 Cap. Cum Medicinalis cit. 2 Ib. 

3 Kober Excom., p. 176; Id., Susp., p. 63. 

4 The Glossa, \. dijficultate in cap. Cum Medic, explains this as follows : "Id 
est, quod sine inora, sine satisdatione, sine causre cognitione, et sine aliquo ex- 
communicati gravamine, hoc (i.e., relaxatio excommunicationis), fieret, cum 
Rviclenter appareat, contra hanc Constitutionem latam fuisse." 



210 Formalities observed in inflicting 

XIII., issued in 1600, we shall discuss further on. 2. The 
Bishop, or ecclesiastical judge, who is guilty of violating 
any of these formalities, is to be condemned by the judge of 
appeal, (a) to pay all the expenses, with interest, incurred 
by the accused, (U) and to undergo other punishments, as 
the judge of appeal may see fit to inflict. All this is express 
ly enacted by Pope Innocent IV., in the Cap. Cum 
Medicinalis already quoted : " Si quis autem judicum 
hujusmodi constitutions temerarius extiterit. violator . . . . 
Superior, ad quern recurritur, sententiam sine difficultate 
relaxans, latorem excommunicate ad expensas et omne 
interesse condemnet, et alias puniat animadversione con- 
digna, ut, pcena docente, discant judices, quaui grave sit 
excommunicationum sentcntias sine maturitatc dcbita fuliiiinare" 

3017. Pope Innocent IV. inflicts, moreover, ipso facto, the 
" interdictum ab ingressu ecclesias " and the suspension " a 
divinis ofticiis " for one month. But, according to Crais- 
son, x these two latter punishments, not being mentioned 
in the Const. Apostoliccz Scdis of Pope Pius IX., are now 
abolished. They never fell upon Bishops, but only upon 
inferior judges, such as Vicars-General. The reason is that 
Bishops are not expressly mentioned in the Cap. Cum 
Medicinalis. 2 

3018. What formalities must be observed in missionary 
countries, where, for instance, neither the recent Instruction 
Sacra Hcec of 1880, nor the older general law of the Church 
in regard to trials has as yet been introduced ? In these 
countries, the formalities which are dictated by the natural 
law must be complied with. Accordingly i. a trial, in which 
all the substantial formalities of trials are observed, must 
precede the sentence or punishment ; 2. the sentence itself 
or the infliction of the punishment is to be (a) in writing, at 
least, on pain of mortal sin, (&) state clearly and fully the 

1 Man., 6418. * Cap. 4 de sent. exc. in 6 C ^v. n). 



Correctional Punishments, also in the United States. 2 1 1 

offence for which the punishment is inflicted, (c) and specify 
clearly the particular punishment inflicted. 

5. Wording of the Sentence. 

3019. Wording of the sentence, also in the United States 
No particular form or wording is prescribed for the sentence. 
The latter is valid, no matter what may be its form or 
wording, provided the conditions or formalities, already 
described be complied with. The Roman Pontifical 
(P. III.) gives a formula, which, however, need not be 
adopted. Pellegrino, in his Praxis Vicariorum, says that the 
wording should be such as to state not only, as was seen, 
the crime and the canonical sanction, etc., but also, (a) the 
name of the judge, and whether he is an Ordinary or 
delegated judge ; (b) the names of the litigants, i.e., of the 
diocesan Prosecutor and of the defendant, when there is 
question of criminal and disciplinary causes with us, (c) 
the fact that the prescribed canonical admonitions, the 
precept, and trial were duly given to the accused, so that 
it may appear on the very face of the sentence that the 
prescribed juridical formalities were all duly observed. 

3020. Hence the sentence should, for instance, read thus : 
Considering the charges made against N., considering that 
the previous admonitions and precept were duly given 
the accused ; considering, moreover, that a full trial was 
granted to him as prescribed,^., in the Inst. Cum 
Magnopere ; having maturely and fully weighed and taken 
into account the proofs and allegations of the prosecution 
and defence submitted during the trial ; having considered 
all that is to be considered, we find the crime charged 
against the accused to wit repeated drunkenness on 
such and such days, and at such and such places fully and 
canonically proven, and we hereby condemn N. for this 
crime, to suspension, etc. l 

1 Pellegr. 1. c., p, 175, n. 21 ; Ib., p. 181, n. 72. 



2 J 2 Formalities observed in inflicting 

6. Publication of the Sentence. 

3021. By publication (denuntiatio censure) we here mean 
the act of the proper Superior, by which the censure 
incurred by a person in foro cxterno is made publicly 
known. We say, in foro externo ; for censures which 
are incurred only in foro interne cannot be published. 
Now a repressive correctional punishment is not incurred, 
and therefore, does not hold in foro externo, except when 
it is inflicted by a trial and judicial sentence, condemna 
tory or declaratory. Consequently, censures cannot be 
published, save when they have been preceded by a trial and 
judicial sentence. The only exception to this rule is when 
the censure has been notoriously incurred. But, as we show 
elsewhere, the trial is, practically speaking, necessary at 
present, also in notorious crimes. 

3022. Nowhere does the law of the Church prescribe that 
the sentence inflicting a correctional punishment, or the 
fact of a censure having been incurred by a person, must be 
generally published. On the contrary, the cases where the 
law of the Church directs such publication to be made 
v.g., Clem. 2. dc pccnis, (v. 8), are to be regarded as excep 
tions to the rule. However, there is no doubt that the 
Bishop or ecclesiastical judge can, nay, sometimes should 
make this publication, when the circumstances of the case, 
~-v.g., the enormity of the crime, the scandal given, the 
danger of others becoming corrupted, and the continued 
obstinacy of the delinquent, render this step useful or 
necessary. T 

3023. The object of the publication is twofold: (a) to 
cause the offender to return more speedily to the path of 
duty by means of the confusion and disgrace brought upon 
him through the publication ; (b) to oblige the others to 
shun him in matters in which the censure requires it. 

1 Arg. cap. Pastoralis 53, de appell. (ii. 28) ; Kober, Suspension, p. 65. 



Correctional Punishments also in the United States. 213 

Hence, when the Superior knows that the person censured 
has already reformed and been absolved, in foro interno, 
he should not make the censure publicly known. l The 
publication, which is simply an annex or complement of the 
censure itself, can be repeated frequently. Thus, in the 
Cap. i, dc ptfnis in Clem. (v. 8), it is ordained that a person 
guilty of a certain crime should be excommunicated, and 
the fact of his having been excommunicated should be 
announced in the churches and other public places, every 
Sunday and holy-day, till the offender had made satisfaction. 

3024. The mode and extent of the publication are left to 
the discretion of the Bishop or judge, Thus, so far as the 
extent of the publication is concerned, the ecclesiastical 
judge may publish it either in the whole diocese, or simply 
in the parish of the person censured, or only in the cathe 
dral. Likewise, as to the manner, the Bishop is free to have 
the publication made by public announcement in the 
church during divine service, or by having it posted at 
the doors of churches or other public places, or even pub 
lished in newspapers. 2 

3025. By whom is the publication to be made? The 
publication is an act of ecclesiastical jurisdiction, no less than 
the infliction of the punishment itself. Consequently it can 
be ordered only by the competent judge or Bishop, and 
that even where it is notorious that a person has incurred 
a censure. When a person has ipso facto incurred a cen 
sure a jure, the right to make the publication belongs to 
the Bishop of the place where it has been incurred, or to 
the Ordinary of the domicile of the offender. 4 But in this 
case, as in all other cases, it is always left to the conscience 
and prudence of the Bishop or judge, to publish the censure 
or not. 

3026. In case the Bishop or judge does not wish to make 

1 Kober, Excom., p. 179. 2 j| D> p jg o 

3 Ib. 4 Arg. Can. 5, c. 6, q. 3. 



214 Correctional Punishments, also in the United States. 

the publication in person, he can depute others to make it 
for him. Thus a Bishop may appoint the parish priest of 
the person censured to announce the censure from the altar 
or otherwise publish it. Here the question arises : Is an 
inferior, v. g., a parish priest, whom the Bishop deputes to 
make the publication, bound to obey, and to make the pub 
lication ? He certainly is, as a rule. * We say, as a rule ; 
for where the inferior knows from the allegata et probata, 
i. e., from juridical documents or acts, and where consequently 
he can prove juridically, that the censure in the case is 
unjust or invalid, he need not, nay, he cannot make the 
publication. 2 But where he knows the censure to be 
unjust, only from private information, and cannot prove 
it juridically, he must execute the orders of the Bishop or 
judge and make the publication, unless he can induce the 
judge to excuse him from the task. 3 

3027. Finally it is asked : Does an appeal against the cen 
sure or its publication, made after the censure is inflicted, 
but before it is made public, hinder the Bishop or judge 
from proceeding to the publication. We shall give the 
answer when we come to treat of appeals against censures. 

1 Cap. 28 de off. del. (i. 29.) 3 Craiss., Man., n. 6423. 8 Kober, 1. c., p. 181. 



CHAPTER VII. 

APPEALS AGAINST REPRESSIVE CORRECTIONAL PUNISHMENTS. 

ART. I. 
Is it allowed to appeal against these Punishments ? 

3028. It is superfluous to say that it is allowed to appeal 
against all censures or correctional punishments, whether 
of excommunication, suspension, or interdict, no less than 
against other punishments and grievances ; upon this point, 
there is no dispute whatever. 1 This right of appeal is 
not only conceded by the express law of the Church, as in 
force at present, but is, moreover, based on the very law of 
nature. For it is part of a just self-defence. In fact, the 
object of an appeal is to prevent an innocent person from 
being visited with punishment, injustice, or wrong. Now it 
is unanimously admitted that repressive correctional pun 
ishments are severe punishments. 

ART. II. 
Effects of Appeals against Censures already inflicted. 

3029. Ordinarily appeals against vindicatory punishments 
have not merely a devolutive, but also a suspensive effect ; 
that is, they not only confer upon the judge ad quern the 
power to re-examine the case and to revoke, modify, or 
ratify the sentence of the first instance, but, moreover, cause 
the sentence to remain inoperative, i. e., cause its execution 
to be stayed until the higher judge has given his decision 

1 Cf. Leur., for. eccl . 1. 2, t. 28, q. 1089, n. I. 



2 1 6 Appeals against 

on the appeal. The reason is, that the execution require a 
new order or decree on the part of the judge. Now he 
cannot issue such new decree, after the appeal has been 
interposed, since his jurisdiction is suspended by the appeal, 
in regard to the cause appealed. * 

3030. The case is different with appeals from correctional 
punishments or censures, when interposed after the censure 
has been already inflicted. Such an appeal produces, as a 
rule, merely a devolutive, but no suspensive effect, as has 
been seen above, 2 since a censure executes itself, and con 
sequently its execution does not require any new act or 
decree on the part of the judge by whom it was inflicted. 
Hence it produces all its effects the very moment it is 
validly and justly pronounced or inflicted. 3 

3031. We say, as a rule\ for in certain cases the appeal 
has a suspensive effect, even when it is interposed after the 
infliction or fulmination of the censure. Thus, according 
to the common opinion of canonists, the suspension and 
interdict a temporalibus, and not merely a spiritualibus, admit 
of a suspensive appeal, even after they have been actually 
inflicted. 4 In other words, when the suspension or inter 
dict produces effects which are not purely spiritual, but 
partake of a temporal character, the appeal, even when 
interposed after the suspension or interdict has been in 
flicted, suspends the effect of the latter. 

3032. Consequently an appeal against a suspension a 
beneficio produces a suspensive effect, even when interposed 
after the suspension has been already imposed. Hence the 
person who is thus suspended and who has appealed can 
continue to receive his salary or the income of his office, 
parish, (or, w r ith us, mission) and to administer its tempo- 

1 Kober, Excom., p. 224. a Supra, vol. i., n. 446. 

3 Cap. 20, de sent. exc. in 6 (v. 11) ; Cap. 37, de app. cum Glossa, ib. t v. in- 
terdictum ; Cap. 5^ de app. (ii. 28). 

4 Leur., for. eccl.. 1. 2. t. 28, q. 1089, n. 10. 



Repressive Correctional Punishments. 2 1 7 

ralities, until the higher Superior or judge of appeal has 
decided the case. The same holds true of appeals against 
a suspension or interdict which forbids (a) the taking 
possession of an office or benefice ; (b) the privilege of voting 
or being voted for, at ecclesiastical elections ; (c) the exer 
cise of Pontificals; (d) the use of the pallium ; (L) and other 
acts or rights of a similar character. 2 In all these cases, the 
appeal is suspensive, though made after the infliction of the 
censure. 3 

3033. One of the reasons, as we have seen, is, that the 
effects of these correctional punishments are not of a purely 
spiritual character, but extend to external, material, and tem 
poral interests. Now, as has been observed, punishments 
which are not of a purely spiritual nature in their effects do 
not execute themselves, but need a neiu decree (decretum 
executionis) apart from the final sentence by which the 
punishment is inflicted. But this new decree cannot be 
issued pending the appeal. 4 

3034. A second and perhaps more cogent reason is this : 
Whatever is contrary to the ordinary and general law of 
the Church must be strictly construed. Now, according 
to the general law of the Church, as still in force, an appeal 
lawfully made against a sentence that has been passed 
produces a suspensive effect. Hence the disposition of the 
Cap. 20 de sent. exc. in 6 (v. ii.), 5 which enacts that an 
appeal against an excommunication, as also against a sus 
pension ab officio divino or ab ingrcssu ecclesice, when made 
after the censure has been inflicted, has only a devolutive 
but not a suspensive effect, must be restricted to those 
specific censures which are expressly mentioned in this 

1 Schmalzg., 1. 2, t. 28, n. 24. 2 jBouix, de jud., vol. ii. p. 255. 

:5 Stremler, 1. c., p. 308. 4 Kober, Susp., p. 84. 

6 The words of the decree are : " Sane sicut excommunicatio, sic ab officio vel ab 
ingressu ecclesire lata suspensio, aut ipsius effectus per appellationem sequentem 
minime suspendunlur." 



2 1 8 Appeals against 

decretal namely to excommunication and to that suspen 
sion which is ab officiis divinis or ab ingressu ecclesice, and 
cannot be extended to any other kind of suspension or 
interdict. * 

3035. Consequently the Glossa," commenting on this 
decretal, says : " Et intelligas proprie de suspensione ab 
ingressu ecclesise, vel divinorum : quia in suspensione a 
temporalibus, puta ab ingressu possessionis beneficii, non 
haberet hoc locum. Talium enim suspensionum vel in- 
terdictorum effcctus bene suspenditur per appellationem 
sequentem. . . . Puto igitur solum in his mere spiritualibus, 
per quas ligatur anima decretalem hanc habere locum." 

3036. Again, Kober 8 maintains that an appeal interposed 
after the censure has been inflicted, even where the censure 
\\zspurely spiritual effect, v.g., suspensio a divinis, produces a 
suspensive, not merely a devolutive effect, when the censure 
is inflicted, not as a correctional punishment or censure, but 
as a vindicatory punishment, since the censure thus inflicted 
is placed on the same footing with vindicatory punishments, 
and is governed by the same laws. 4 Of course, this princi 
ple can apply only to suspension and interdict, since they 
alone can be inflicted as vindicatory, and not merely as 
correctional punishments. 

3037. Nay, an appeal against any censure, whether of 
excommunication, suspension, or interdict, made after the 
censure has been already inflicted, even though it has been 
inflicted as a medicinal punishment, and even though it pro 
duces spiritual, and not merely temporal effects, has a 
suspensive effect, when the appeal is interposed ex capite 
nullitatis, i.e., on the ground that the censure is invalid and not 
merely unjust. This is expressly declared by Pope Bene- 

1 Leur., 1. c. ; Kober, 1. c., p. 84. 2 V. Sequentem. 

3 Susp., p. 86. Kober here quotes Streyk and Pirhing, 1. 2, t. 28, n. 48, as 
favoring this opinion. 

4 St. Liguori, 1. 7, n. 314. 



Repressive Correctional Punishments. 219 

diet XIV., in his celebrated Const. Ad Militant is vi 1742, 36. 
Now, as was seen, this provision, as well as others of said 
Const. Ad Militantis, is laid down in the Instructions Sacra 
HCBC of 1880, and Cum Magnopere, of 1884, as the law or rule 
to be followed in appeals at the present day. Of course, an 
appeal which is made ex capite nullitatis takes it for granted 
that the nullity of the censure is doubtful. For, where it is 
certain that the censure has been invalidly inflicted, it is 
not necessary for the person censured to appeal in order 
to have the censure declared invalid, since he can, of his 
own accord, disregard it, and that even publicly, when the 
nullity is publicly known. 

3038. Finally, when the correctional punishment is in 
flicted a jure and is latce sent entice, it is incurred, as we have 
seen, in the internal forum, by the very commission of the 
crime itself, i.e., ipso facto, without any juridical formality 
whatever. But in the external forum a declaratory sen 
tence is required. Against this declaratory sentence it is 
allowed to appeal, and that not only in devolutivo, but also 
in suspensive, 2 so that the appeal in the case suspends the 
effect of the declaratory sentence, and hinders its publica 
tion. 3 This has reference to a declaratory sentence, after 
it is pronounced. 

3039. Does it also apply to a declaratory sentence which 
is merely threatened? In other words, is it allowed to appeal 
against the mere threat, on the part of the ecclesiastical 
judge, that he will proceed to pass declaratory sentence ? 
There are two opinions. Leurenius 4 holds the affirmative. 
He maintains that if, for instance, a person were cited by 
the ecclesiastical judge to hear sentence pronounced, by 
which he is declared as having, v.g., incurred excommunica 
tion or suspension, and if this person meanwhile appeals 

1 Schmalzg., 1. 5, t. 39, n. 115; Craiss., n. 6430, Arg. cap. 2 de sent, et re jud. 
(ii. 27). 

2 Leur., 1. c., q. 1090, n. i. 3 Stremler, 1. c., p. 417. L. c., n. 2. 



220 Appeals against 

against this threat, this appeal will produce a suspensive 
effect, and, consequently, prevent the judge from validly 
pronouncing the declaratory sentence or publishing it. 
Stremler, 1 on the contrary, teaches the opposite. According 
to him, no suspensive appeal lies against the declaratory 
sentence in the case, which is merely threatened, but not 
yet pronounced. The reason assigned by him is, that the 
declaratory sentence does not inflict an irreparable injury, 
considering that it admits of a suspensive appeal after it is 
pronounced, which rights all and hinders the publication. 

ART. III. 
Appeal against the Publication of Censures. 

3040. We have just seen that it is allowed to appeal 
against the publication of a declaratory sentence, in the case 
of censures which are a jure and latce scntcntice, and that 
such appeal has a suspensive effect, and therefore, hinders 
the publication, or annuls the effect of the publication if 
made notwithstanding the appeal. We now ask whether 
this applies to the publication of correctional punishments, 
inflicted ab Jiominc, and that/rr scntentiam particularcm ? In 
other words : Let us suppose that a Bishop or ecclesiastical 
judge inflicts a censure upon a subject. The latter appeals 
against the punishment, or, also, fearing lest the judge will 
officially publish it, appeals directly against the proposed or 
feared publication. Is it allowed to appeal directly against 
the proposed publication ? And if so, what effect has the 
appeal? Again, what effect upon the publication has the 
appeal interposed, not directly against the publication, but 
simply against the censure ? 

3041. So far as regards appeals made against the censure 
itself, and not directly against its publication, we must dis- 

1 T, c, p. 417. 



Repressive Correctional Punishments. 221 

tinguish between appeals that have a suspensive effect, and 
those which have merely a devolntive. Where the appeal 
has a suspensive effect, it hinders the ecclesiastical judge, as 
has been shown, from validly inflicting and, consequently, 
also from validly publishing a censure. Hence an appeal 
interposed against a censure which is merely threatened, or 
against a censure which, though already inflicted, yet admits 
of a suspensive appeal, prevents the valid publication of the 
punishment. Consequently, it is not necessary, in this case, 
to appeal directly against the publication. 

3042. Where, however, the appeal against the censure 
itself has but a devolutive effect, there are two opinions as 
to the bearing which such appeal has on the publication. 
Kober 1 and some other canonists affirm that, as this appeal 
does not prevent the censure from taking full effect, so 
neither does it hinder the publication of the censure. For, 
they say, the publication of a censure is merely an adjunct, 
a complement of the censure itself, and does not add any 
thing to the censure, but simply makes its existence known. 
They confirm their view from the enactment made by Pope 
Innocent III., (1214) which enjoins expressly : " Consuluisti 
nos, ut rum si quis excommunicationis sententia innodatus. 
ante denunciationem ipsius ab ea . . . . curaverit provocare 
.... ipse (judex) denunciare possit eumdem (appellantem) ? 
.... Respondemus, quod cum executionem excommunica- 
tio secum trahat, et excommunicatus per denunciationem 
amplius non ligetur, ipsum excommunicatum denunciare 
potes." 2 

3043. Leurenius, 3 however, Sanchez, and others hold the 
opposite view. They argue thus : It is the express law of 
the Church that no innovation whatever, or change detri 
mental to appellant, shall be made, during the time the 

1 Excom., p. 185. 2 c a p 53, de sent, et re jud. (ii. 27). 

3 For. eccl., 1. 2, t. 28, q. 1090. 



-22 Appeals against 

appeal is pending ; 1 that the judge ad quern shall, before all 
else, i. e., before even entering upon the examination of the 
appeal, forthwith revoke and annul anything done by the 
judge a quo after the appeal has been interposed. Now, 
they continue, it is true that, prior to the Const. Ad Vitanda of 
Pope Martin V., the publication of the censure did not add 
new force or consequence to the censure, and was no inno 
vation pending the appeal. Hence they admit that, down 
to the time of the Const. Ad Vitanda, the above decretal of 
Pope Innocent was the law of the Church. But, they say, 
the case has become entirely changed since the Constitution 
of Pope Martin was issued. For, by this Constitution, the 
status of the appellant is materially changed, to his 
detriment, by the publication of the censure. Indeed, 
according to this Constitution, an excommunicate becomes, 
after the publication of the censure, a vitandus, his acts are 
null, whereas, before the publication, he was merely tolcratus, 
and his acts were valid. Hence it is evident that, at the 
present day, the publication makes the censure much more 
burdensome and causes it to bind much more strictly and 
fully, and that, consequently, the saying of Pope Innocent 
III., " Excommunicatus per denuntiationem amplius non 
Ugatur" is no longer verified in our altered circumstances, 
as introduced by the Const. Ad Vitanda. They conclude 
therefore that, at the present day, the appeal in the case 
hinders the judge from validly publishing the censure. 

3044. Nay, they contend that it is allowed to appeal 
directly against the proposed or future publication of the 
censure after the latter has been already inflicted, and that, 
by this appeal, the publication is suspended, so that it 
cannot be made, or if made, is invalid. 2 

3045. Of these two opinions, that of Leurenius seems to 
us, at the present day, the true, and, in fact, the only safe one 
to follow. For, as we shall see later, when we come to speak 

1 L. I ff. Nihilinnovari (49. 7) ; Cap. 7 de app. in 6 (7. 15.) 2 Leur., 1. c. 



Repressive Correctional Punishments. 223 

of the Const. Ad Vitanda of Pope Martin V., which forms 
the present law of the Church, prior to this Constitution, 
censures produced the same effect, whether they were pub 
lished or not. The publication added no new or additional 
effects. But, after this Constitution, the effect of the 
censures was greatly strengthened and increased by their 
official publication. Consequently it may be said that the 
legislation of Pope Innocent III., as laid down in the Const. 
Prczterea 53. de app. has been modified by the subsequent 
Extrav. Ad Vitanda. 

ART. IV. 
Effect of Appeals against threatened Censures. 

3046. Thus far we have spoken of appeals which are 
interposed after the censure has been already inflicted. 
We come now to those appeals which are made before the 
correctional punishment is imposed. There is no doubt 
whatever, that, as was seen above, x it is allowed, at the 
present day no less than formerly, to appeal against a 
censure which is not yet inflicted, but is merely threatened 
or impending, and that such appeal has not only a devolutive 
but also a suspensive effect. This is the express, clear, and 
distinct law of the Church, as fully in force at the present 
day, also with us, and as endorsed by the unanimous 
opinion of canonists. In fact, Pope Celestin III., (1195) en 
acted : " Prasterea requisiti fuimus, si quis judex ita 
protulerit sententiam : Nisi Sempronio intra 20 dies 
satisfeceris, te excommunicatum, vel suspensum aut 
interdictum esse cognoscas : et ille in quern fertur sententia, 
medio tempore appellans, ad diem statutum minime 
satisfecerit, utrum ille sententia tali ligetur, aut interposita 
appellatione tutus existat? Videtur autem nobis, quod 

1 Supra, vol. i., n. 446. 



224 Appeals against 

Jiujnsinodi sententiam appcllationis obstaculum deb cat im- 
pedire" J 

3047. Moreover, the decree of the Sacred Congregation 
of Bishops issued by command of Pope Clement VIII., in 
1600, expressly declares that it is allowed to appeal, etiam 
quoad effectum suspcnsivum against a threatened or impending 
censure (a gravamine. . . cxcommnnicationis comminatce). 2 Pope 
Benedict XIII. in a Council held at Rome, in 1725, confirmed 
and re-enacted this decree. 3 Finally Pope Benedict XIV., 
in his celebrated Constitution Ad Militant is ^ 1742, enjoins 
the strict observance of these laws, in the following passage : 
" Ubi vero agatur de censuris jam prolatis, vcl de commina- 
tione. . . censurarum, observetur omnino dispositio dictorum 
Decretorum Congregationis Episcoporum sub rec. mem. 
Clemente VIII., juxta additiones et declarationes prsemem. 
Benedicti XIII." 

3048. Now the Instructions Sacra H<zc (Art. XXXVII.) of 
1880 and Cum Magnopcre of 1884 (Art. XXXVII.) command 
that, in appeals, the regulations contained in the above 
Const. Ad Militantis shall be accurately observed. The 
words of these Instructions are : " Pro appellatione serven- 
tur normae statutae a Const, ad Militantis S. M., Bened. XIV. 
30 Martii, 1742." 5 It is therefore certain, beyond a shadow 
of doubt, that, at present, with us no less than elsewhere, an 
appeal against a future or threatened censure is allowed and 
has a suspensive effect ; that, consequently, such appeal sus 
pends the jurisdiction of the judge a quo, so that he cannot 
proceed to inflict the punishment. And if he nevertheless 
inflicts the censure, the latter is ipso jure void, and can be 
wholly disregarded with impunity, 6 both in for o interno and 
in for o externo, since it is imposed by an ecclesiastical judge 

1 Cap. 40 de app. (ii, 28.) The same principle is laid down in Cap. 55 de app. (ii* 
28) ; Cap. 14, de sent, exc., in 6. 

2 Art. viii., ix. 3 Declar. ad Deer. ix. 4 Art. xlv. 
5 Stremler, p. 418. 6 Leur., For. Eccl., 1. 2, t. 28, q. 1089, n. I. 



Repressive Correctional Punishments. 225 

or Superior, whose jurisdiction has been suspended by the 
appeal. 1 

3049. This is manifest from the following decision of Pope 
Alexander III., contained in a letter to the Archbishop of 
York : A priest named R. had appealed to the Holy See 
against the Archbishop. Nevertheless, after making the 
appeal, he was excommunicated by the Archbishop. He 
disregarded the excommunication, and said Mass, etc., as 
though he had not been excommunicated, on the ground 
that it was invalid, having been inflicted after he had 
appealed. The Pope fully sustained the Priest and decided 
that the censure, having been inflicted after the appeal had 
been interposed, was null and void, and that, consequently, 
the Priest R. should not be molested or disquieted because 
he had violated the censure by saying Mass, etc. 2 When 
we come to ask why the Church allows a suspensive appeal 
against a threatened censure, canonists answer that a cen 
sure, once imposed, causes an irreparable harm or injury, 
since it carries its execution with itself. 5 

3050. From what has been said, it follows that the appeal 
against a threatened censure produces a suspensive effect, 
even though it (the appeal) be rejected by the judge a quo. 4 
It follows also that if, for instance, a person were cited to 
hear sentence (whether of excommunication, suspension, 
or interdict) pronounced against him, he can appeal, and the 
appeal will suspend the jurisdiction of the judge, so that 
he cannot validly pronounce sentence. 5 

1 Leur., for. eccl., 1. 2, t. 28, q. 1089, n. I. 

2 Cap. Ad Praesentiam 16, de app. (ii. 28); arg. Cap. 37, eod. The words of the 
Pope are: " Ideoque mandamus quatenus prsedictum presbyterum, pro eo quod post 
txcommunicationem contra appellationem factam divina cantavit, nullatcmis in- 
quietes, sed ad eum statum teducas omnia in quo erant tempore appellationis tmtssa." 

3 Leur. I.e.; Stremler, I.e.; Kober, Exc. p. 227; Supra, n. 1161. 

4 Leur., 1. c. 5 S. C. C. S. Marci, 13 Apr. 1726; Stremler, p. 419. 



226 Appeals against 

ART. V. 

Procedure before the Judge " ad quern" in adjudicating 
Appeals against unjust Censures. 

3051. We now come to the mode of procedure to be 
observed in appeals against censures. We have already 
seen that, by virtue of an appeal interposed against a cen 
sure, the Metropolitan obtains jurisdiction to try or re-exam 
ine the case appealed to him, and to revoke or confirm the 
censure or correctional punishment inflicted by the judge a 
quo. While the Metropolitan, not being the superior pleni 
juris of his suffragans, can revoke censures inflicted by 
them only when he is appealed to, the Sacred Congre 
gations of Rome, having full, ordinary, concurrent, and 
immediate jurisdiction all over the world, can revoke cen 
sures, not only when appeal is made to them, but whenever 
they see fit to do so. a 

3052. Q. How should the Metropolitan or judge ad quern 
proceed in taking cognizance of and deciding appeals in 
terposed against censures ? 

A. There is question of censures, which are claimed to 
be either unjust or invalid. When the appellant claims 
that the censure is unjust, the judge ad quern cannot revoke 
the censure, or declare it invalid, at the sole assertion, or 
statements, or proofs of the appellant. He must first hear the 
parties, that is, not only the appellant, but also the appellee 
i.e., judge a quo or his representative. In other words, 
he must first cite both parties for the trial of the cause 
appealed, and then proceed t ) hear or try the case in the 
presence of both parties, and afterwards pronounce sen 
tence, either revoking the censure or confirming it. Thus 
Pope Innocent IV. decides : " Sententias quoque interdict! 
vel suspensionis seu excommunicationis in appellantem ab 
eoaquo appellatum proponitur promulgatas, nullatenus nisi 



Repressive Correctional Punishments. 227 

vocatis partibus et de appellatione legitime constito revocent 
aut denuntient esse nullas." 

3053. The decree of the S. C. EE. et RR. Ad Tollen- 
das(\6o6), z which is confirmed by Pope Benedict XIV., 
in his Const. Ad Militantis, and therefore made obliga 
tory in the Instructions Sacra Hczc of 1880, and Cum 
Magnopcre of 1884, likewise enjoins: " Censura ecclesiastica 
in appellantem prolata relaxari aut nulla declarari per 
judicem appellationis non possit, nisi auditis partibus, et 
causa cognita" 

3054. The manner in which the trial is conducted is the 
same as that in which any other appeal is tried. In the 
United States, the trial or hearing of the cause appealed is 
conducted according to the provisions of the recent In 
struction Cum Magnopcre. In Catholic countries, not subject 
to the S. C. de Prop. Fide, the formalities prescribed in the 
Instruction Sacra Hcec of 1880 must be observed. 

3055. But suppose that, after hearing both parties, i.e., the 
appellant and the appellee, i.e., the judge a quo or his repre 
sentative, v.g., the diocesan prosecutor, the Metropolitan 
or judge ad quern finds it certain that the censure has been 
justly inflicted ; or he finds it clearly certain that it has 
been unjustly imposed; or, finally, he finds it doubtful 
whether it has been justly or unjustly inflicted : how is he 
to proceed in each of these three cases ? In the first case, 
namely, where it is certain that the censure is just, the judge 
ad quern must remit the appellant to the suffragan Bishop 
who inflicted the censure. And if the suffragan then 
maliciously refuses to give the absolution from the censure, 
though properly requested to do so by the appellant, the 
Metropolitan should himself impart it. 4 

3056. In the second case, namely, where it is certain that the 

1 Cap. Romana Ecclesia 3, de app. in 6 C (ii. 15) ; Glossa in cas. 
- Art. xiii. " Cf. Cap. venerabilis 7, in 6. (v. ii). 

4 Cap. venerabilis 7 de sent excom., in 6. 



228 Appeals against 

censure is unjust, the judge ad quern can and should himself 
revoke it or declare it invalid. 

3057. In the third case, namely, where it remains doubt 
ful whether the censure has been justly inflicted or not, the 
judge ad quern has a perfect right, if he wishes, to grant the 
absolution himself, though it is more becoming that he 
should remit the appellant to the judge a quo, with the man 
date that the latter grant the release from the censure 
within a brief space of time fixed by him, i.e., by the judge 
ad quern. * This is at present the universal law of the 
Church, as in force also in this country. For it is expressly 
enacted in the above quoted decree of the S. C. EE. et 
RR. Ad Tollendas. 2 This latter decree was confirmed by 
Pope Benedict XIII. in the Roman Council of 1725, 3 and 
also enjoined anew by Pope Benedict XIV. in his Const. 
Ad Militantis. * Now, both the recent Instructions Sacra 
H&c and Cum Magnopcrc expressly declare that in appeals 
the regulations contained in the above Const. Ad Militantis 
must be observed. 

3058. Besides, the Metropolitan or judge ad quern should, 
if he finds the censure clearly unjust, condemn the judge a 
quo by whom it was inflicted to pay the cost of the whole 
proceedings and completely indemnify the appellant. He 
should, moreover, if he finds that the circumstances of the 
case warrant it, impose other suitable and proportionate 
punishments upon the judge a quo. The latter shall be free 
from punishment, only in case he can prove, that, in 
inflicting the censure, he acted from error, v. g., if he 
shows that he excommunicated the appellant, in contumaciam, 
believing that the citation had duly reached him, although 
afterwards, it is shown that it did not reach him. 5 The 

1 Cap. Venerabilis 7 de sent, excom., in 6 (v. II); Kober. Excom., p, 229; 
Idem. Susp., p. 137. 

Art. xii, 3 Ad Deer. xii. Clementis XIII. 4 45. 

5 Cap. 48, de sent. exc. (v. 39) ; Clossa. 1. c. , v. ex causa -brobabili. 



Repressive Correctional Punishments. 229 

wording of this law, which is in full force at present, is as 
follows : 3 " Cum adversus excommunicatorem de injusta 
excommunicatione constiterit, excommunicator condemnetur 
ad intcresse excommunicate, alias nihilominus, si culpas gravi- 
tas postulaverit superioris arbitrio puniendus, cum non levis 
sit culpa, tantam infligere poenam insonti ; nisi forsan 
erraverit ex probabili causa, maxime si laudabilis opinionis 
existat." 2 



ART. VI. 

Procedure before the Metropolitan in Appeals against "Invalid" 

Censures. 

3059. But how is the judge ad quern to proceed in case 
the appellant claims that the censure inflicted upon him is 
not merely unjust, but is invalid? We must distinguish 
between two cases ; namely between the case where it is 
certain and undoubted that the censure is null and void, and 
the case where it is doubtful whether or not it is invalid. 

i . Procedure when the Censure is certainly Invalid. 

3060. If it is certain, clearly manifest, and publicly known 
that the censure is invalid, z/.^that it has been inflicted 
after an appeal had been lawfully interposed, or that any 
other requirement, condition, or formality prescribed by the 
Church as a substantial condition, or expressly on pain of 
nullity, has been set aside by the ecclesiastical judge or 
Superior, it may be completely disregarded, not only inforo 
inferno, but also in foro cxtcrno, privately and publicly, by 
the party censured, and that on his own private authority. 

3061. Thus Pope Gelasius, writing to the Bishops of the 
East, decrees : u Sed si injusta (invalida) est sententia, tanto 
earn curare non debet, quanto apud Deum et Ecclesiam ejus 

1 Cap. 48 cit. 2 Cf. Instr. Cutn Magnopere, art. xliv; Cf. Kober, Excom., p. 230. 



230 Appeals against 

neminem potest iniqua gravare sententia. Ita ergo ea sc 
non absolvi desideret, qua se nullatenus perspicit obliga- 
tum." 1 Here, then, the principle is established that a 
censure or sentence which is clearly null and void does 
not bind either before God or in the face of the Church, 
that is, in the external forum of the Church ; that, conse 
quently, the person upon whom such a censure has been 
inflicted may entirely disregard it, of his own accord and 
on his own responsibility, both in foro inter no and in foro 
externo. 

3062. The same principle is laid down by Pope Gregory, 
when he says : " Non debet is pcenam sustinere canonicam, 
in cujus damnatione non est canonica prolata sententia." : 
Hence, the Glossa, 3 commenting upon this decree, says : 
" Si ergo constet tibi, quod sententia judicis est iniqua 
(invalida) potes judici violenter resistere . . . ergo si quis 
celebrat post excommunicationem injuste (invalide) latam, 
non debet sustinere aliquam pcenam." It must be observed 
however, (a) that these two decrees apply only where the 
censure or sentence is invalid and not merely unjust ; (b) 
and where its nullity is certain and undoubted. For if it 
is (Joubtful whether the censure is invalid or not, the 
person visited with censure must, as we shall presently see, 
appeal his case to the judge ad quern, in order to have the 
nullity declared officially. 

3063. When is a censure ipso jure null and void ? For 
the answer, we refer the reader to what we shall say a little 
further on, where we show that censures are invalid, 
because (a) of want of jurisdiction in the Superior ; (/;) of the 
omission of a substantial formality in the proceedings ; (c) 
of absence of canonical proof of crime sufficiently grave to 
warrant the infliction of censures, although in reality the 
crime has been committed. 

1 Can. Cui illata 46, c. xi., q. 3. - Can. Non debet 64, c. xi., q. 3. 

3 V. non debet. 



Repressive Correctional Punishments. 231 

2. Procedure when it is doubtful whether the Censure is 

Invalid. 

3064. Where, however, it is doubtful whether the censure 
is invalid or not, v.g., where the person who has been 
censured claims that the censure has been inflicted upon 
him after he had made an appeal, or that the offence was 
not fully proved juxta allegata, or that, if proved, it was 
insufficient the Metropolitan or judge ad qucm when 
appealed to, should before all else, that is, before he enters 
upon the hearing of the merits of the case antequam 
audire causam incipiat 1 give the absolution ad cautelam, 
though only (a) by way of a provisional measure, (b) 
and citata parte, i. e., the appellee or judge a quo, 
and visis actis. Then he should proceed to hear the 
appeal, and at the end of the trial or investigation he should 
pronounce final sentence, declaring the censure either valid 
or invalid. If he declares the censure valid, the absolution 
"ad cautelam" given in the beginning of the hearing 
lapses, and the censure revives. But if he declares it null, 
it ceases absolutely, and the provisional absolution " ad 
cautelam " passes into an absolute and permanent release 
from the punishment. 

3065. These regulations are thus enjoined by the Decree 
of Pope Clement VIII. Ad Tollendas : 2 " Absolutio ad cau 
telam, nonnisi citata parte " (the party against whom the 
appeal is made) " et visis actis, cum dubitatur de nullitate 
excommunicationis ab homine prolatas vel a jure, 3 si 

1 Cap. 7 de sent. exc. in 6 C . 2 Art. xiii. 

3 Although here, and in the following documents, excommunication alone is 
mentioned, yet it is a well-known maxim of canon law that what is affirmed of one 
censure, applies equally to all the others, except, of course, where there is question 
of the specific nature of the particular censure. Hence, Schmalzgrueber, 1. 5, t. ^9. 
n. 104. expressly applies the law enacted in the above documents to ail censure.- 
without exception. 



232 Appeals against 

occurrat clubium facti vel probabile dubium juris, conce- 
dencla erit, tuncque ad tempus breve cum reincidentia et 
praestita per excommunicatum cautione de stando juri et 
parendo mandatis Ecclesiae tantum ; at si juxta formam 
a jure prasscriptam apparebit, aliquem ob manifestam 
offensam excommunicatum fuisse, debitam etiam satisfactio- 
nem prasstare, et si ob contumaciam manifestam, expensis 
pariter satisfacere et cavere de judicio, sisti coram 
excommunicatore is tenebitur, priusquam ad cautelam 
absolvatur." 

3066. Pope Benedict XIII., (1725) in his explanations of 
and additions to this decree, enjoins : " Verum quoad 
absolutiones cum reincidentia, quse Partibus concedi solent 
a judicibus, ad quos appellatur, ad effectum audiendi, cum 
inoleverit usus tarn in Tribunali A. C. quam forsan etiam in 
Metropolitanis aliisque Tribunalibus appellationum, quod 
committantur absolutiones cuicunque Confessario, ita ut 
rei absque ulla reverentia proprii Ordinarii pro absolutis se 
publice habeant : Sanctitas Sua statuit ut in futurum hujus- 
modi absolutiones cum reincidentia, tarn in Tribunali A. C. 
quam in Curiis Metropolitanis aliorumque juclicum 
appellationum, committantur ipsis Ordinariis excommu- 
nicantibus cum clausula ut infra tres dies absolvant 
censuratos juxta commissionem ; quibus elapsis, si 
requisitus Ordinarius absolvere recusaverit vel neglexerit, 
absolvantur a Confessario juxta commissionis formam, quae 
in praesenti servatur in dictis commissionibus absolutionum. 
.... Declaravitque rursus Sanctitas Sua, quod hujusmodi 
Commissiones de absolvendo praesentari debearit Cancella- 
rio Ordinariorum, a qua prassentatione currere debeant tres 
dies, post quorum lapsum, et non data absolutione, possint 
ab aliis absolvi, ut supra, in commissione." 

3067. These enactments are expressly confirmed in the 
Const. Ad Militantis, of Benedict XIV., 45, and therefore 
made obligatory with us, by the Instruction Cum Magno- 



Repressive Correctional Punishments. 233 

pcrc, 1 and in Catholic countries, by the Instruction Sacra 
Hac, of 1880. 2 

3. How the Metropolitan imparts the Absolutio ad Cantelain. 

3068. From the regulations just given, it follows : First, 
that the absolution ad cant clam, in the case, is given, not 
permanently, but only cum rcincidcntia ; in other words, the 
person who appeals against the censure ex capitc nnllitatis 
is released from it only temporarily, that is, only so long as 
the investigation or trial of his case lasts in the court of the 
Metropolitan or judge ad quern, and until a final decision 
on the whole case is rendered by the latter. As we have 
seen, when a person who has been placed under censure, 
whether of excommunication, suspension, or interdict, 
appeals to the Metropolitan or judge ad quern, and asserts 
that the censure inflicted upon him is invalid, or, at least, 
probably invalid, and where, consequently, it becomes 
doubtful whether the censure is valid or not, he must be 
heard, i.e., his appeal must be entertained, and the validity 
or nullity of the censure investigated. 

3069. Now, it may, nay, not infrequently does, take a 
long time for the Metropolitan to fully examine, hear, try, 
and decide the case. Delays, both legal and conventional, 
may and will occur. 3 Hence, considering that it is doubt 
ful whether the appellant in the case is guilty or not, or 
whether the censure is valid or invalid, and that, therefore, 
it is possible that one who is innocent, or not validly under 
censure should, during the whole time of the trial or 
investigation of his appeal, suffer such a severe punishment 
as a censure, the law of the Church enjoins that the appel 
lant, not only may, but shall be absolved ad cautclam and 
that, forthwith, i.e., in the very beginning, and before the 

1 Art. xxxvii. 

2 What is meant by the absolutio ad cautelam will be explained later on. 

3 Supra., vol. ii., n. 1079 sq. 



234 Appeals against 

judge ad quern enters upon the hearing of the appeal, and 
shall remain released from the censure ad interim, that is, 
until his case has been tried by the Metropolitan, and final 
decision given by him. 

3070. This absolution ad cautelain is therefore simply a 
provisional measure. For, if, at the end of the investigation 
or trial of the cause, the Metropolitan or judge ad quern, to 
whom the case has been appealed, decides, by a final 
sentence, that the censure has been validly inflicted, it re 
vives at once ; if he decides otherwise, the appellant is then 
absolutely and permanently released from the censure. 2 
By granting the absolutio ad cautclam in the case, the 
Metropolitan, as is evident, does not give any definitive 
decision whatever in regard to the alleged invalidity of the 
censure, or the merits of the case appealed. For he must 
grant this absolution before he enters upon the hearing of 
the case. He simply declares, by implication, that it is 
doubtful whether the censure is valid or not. Here we 
observe that the Metropolitan not only can, but is strictly 
bound to authorize this absolution, and that, as we shall see, 
prior to hearing the cause itself. 3 If he refuses to grant it, 
an appeal in suspensivo lies against such refusal, since it 
would inflict a damnum irrcparabilc. 

3071. Here it may be objected that this regulation 
seems superfluous, since the appeal ex capite nullitatis pro 
duces a suspensive effect, as we have seen, and, therefore, 
relieves a person from the obligation of observing the 
censure, pending the appeal. 4 We answer, the absolutio ad 
cautclam, proceeding, as it does, directly from the competent 
ecclesiastical judge, takes away all doubt as to whether the 
appeal is rightly and properly interposed ex capite nulli- 

1 Cap. 2, 7, de sent, excom. in 6 (v. II), 2 Kober, Excom., p. 543 sq. 

3 Cap. Solet 2 de sent, excom. in 6. 

4 Const. Ad Militantis, 37; Droste, pp. 135, 136; Munchen, 1. c., vol. i., 
p. 588. 



Repressive Correctional Punishments. 235 

tatis and, moreover, officially confirms the suspensive 
effect of the appeal. This absolution is, therefore, equivalent 
to an official declaration of the competent Superior that the 
appeal is legitimately interposed ex capitc nullitatis and is, 
therefore, suspensive. 

3072. Second, it follows, from what has been said, and is 
also expressly enacted in the Sacred Canons, as still in full 
force, that the absolution in question shall be given " ante 
litis ingressum," or " antequam audire causam incipiant," 
(Metropolitan!), * or " priusquam incipiat de veritate causse 
appellationis cognoscere," 2 that is, before he enters upon 
the hearing or trial of the cause itself, as appealed to him. 
The Glossa* thus puts the question: Should the Metropol 
itan to whom the appeal is made, before he grants the 
absohitio ad cautelam, inquire into the justice or injustice 
(validity or invalidity) of the censure, where, for instance, 
the judge a quo, who inflicted it, claims that it is just, (valid), 
so that the appellant remains under censure pending the 
trial or investigation in regard to the nullity or injustice of 
the censure ? The Glossa replies and its reply is correct 
and applicable at the present day that, according to the 
decision of Pope Innocent IV., the Metropolitan should, in 
all these cases, before proceeding to hear the case, and before the 
nullity or injustice of the censure has been established, absolve 
the appellant ad cautclam, after having received from him a 
pledge or promise that if it is found that he was guilty, and 
therefore justly censured, he will for the future obey the 
laws of the Church. 

3073. There are only two exceptions to this rule ; namely, 
where the Bishop or judge a quo, (or his representative, v.g., 
the procurator fiscalis,} by whom the censure was inflicted 
in the first instance, offers to prove within eight days 4 that 
the censure was imposed by him (a) for a manifest offence 

1 Cap. 7, de sent, excom. in 6. 2 Ib. 3 In cap. 7, eod. v. Porro iste. 

s For just cause the judex ad quern may prolong this period. Glossa in Cap. 2 
de sent. exc. in 6 C v. octo. 



236 Appeals against 

(pffcnsa manifesto) ; (b) or for manifest contumacy (contumacia 
manifesto..) For in those two cases, the absolution ad caute- 
lam is deferred for eight days. * If, within that time, the 
objector (i. c., \\\zjudcx a quo who objects to the granting of 
the absolution) does not prove that the censure was inflicted 
for a crime which is manifest, or for evident contumacy, he 
is to be condemned to pay the costs, and the appellant must 
be forthwith absolved ad cautelam. 2 

3074. But if he does prove the above assertions, the 
absolutio ad cautelam can be given by the judge ad 
quern or his delegate, only on these conditions : First, that 
the appellant or person to be absolved shall, before he is 
absolved, make due satisfaction ; second, that, where he has 
been clearly shown to be guilty of manifest contumacy, he 
shall, moreover, pay the costs of the proceedings; third, that 
he shall present himself to the Superior by whom he was 
censured, and that in token of submission ; 3 fourth, that he 
shall give a proper guarantee or at least promise that should 
it appear from the proceedings before the judge ad quern 
that he was guilty, and therefore justly censured, he will in 
future obey the laws of the Church. 

3075. We have said, for a manifest offence. The Glossa 
explains this to mean a notorious offence. 4 We have also 
said, and for manifest contumacy. Pope Innocent IV. 6 and 
the Glossa 6 explain what is meant by manifest contumacy, 
by the following case. Suppose an Ecclesiastic is cited by 
his Bishop to appear for trial. He fails to appear and is 
excommunicated on that account. He appeals to the 
Metropolitan, and alleges that he refused to appear be 
cause the place to which he was cited was not safe, or 
because he was detained by a lawful impediment, v. g., by 
sickness. On the other hand, the Bishop offers to show r 

1 Cap. Solet 2, de sent. exc. in 6 (v. n.) 2 Schmalzg., 1. 5, t. 39, n. 104. 

3 Decretum Clem. VIII. Ad Tollendas, art. xiii. 

4 Glossa, in Cap. 2 <le sent. exc. in 6 C , v. manifesta. 5 Cap. Venerabilibus cit. 
6 In cap. Venerabilibus cit. 



Repressive Correctional Punishments. 237 

within eight days, that the alleged excuses are clearly and 
notoriously without any foundation whatever, and that 
consequently the contumacy is manifestly inexcusable. 

3076. Excepting in these two cases, the absolution ad 
cautelam must be always given when it appears that there is 
a reasonable doubt as to the validity of the censure, and 
before the hearing or trial of the cause appealed is com 
menced, no matter what objections the judex a quo or 
appellee may interpose. x Lest, however, this absolution 
lead to abuse and be obtained even by those who are clearly 
and without a shadow of doubt under valid and just censure, 
but who nevertheless claim that it is doubtful whether the 
censure inflicted on them is valid or not, the law of the 
Church ordains, first, that the absolution ad cautelam 
shall not be given on the sole assertion or statement of the 
appellant, 2 but citata parte et visis actis ; in other words, the 
judge ad quern must in a simple, informal, and summary 
manner, hear not only the appellant, but also the appellee 
or party by whom or at whose instance the censure was 
inflicted, and also inspect the papers (acta) submitted by 
them, and thus ascertain the existence of the doubt in the 
case. However, the appellant, at this stage, is not bound 
to prove the nullity of the censure. He must merely show 
that a doubt may be entertained in regard to the validity ot 
the punishment. 3 For as soon as the Metropolitan or judge 
ad qucm finds, in his informal inquiry, 4 that it is doubtful 
whether the censure is valid or not, he is obliged forthwith 
to grant the absolution, notwithstanding any objections that 
may be urged by the judge a quo or his procurator fiscalis. 
3077. Second, that the appellant should, before being 

1 Cap. 2 de sent. exc. in 6. 2 Schmalzg., 1. 5, t. 39, n. 104. 

3 For instance, because the crime was not fully proved "juxta allegata," or, if 
proved, is insufficient to warrant the punishment. 

< This inquiry is similar to the " Summaria facti cognitio " of the Instr. Cum 
Magnopere of 1884. 



238 Appeals against 

absolved, give a proper guarantee, or at least a sworn 
promise that in case the proceedings before the judge ad 
quejji show that he was culpable, * and consequently justly 
censured, he will in future obey the laws of the Church. 3 

3078. Third, lest the authority of the Bishop or the 
ecclesiastical Superior, by whom the censure has been 
inflicted, should fall into contempt, the Metropolitan cannot 
at present, as he could formerly, empower any simple con 
fessor to impart the absolution ad caiitelam, but must 
remit the appellant to his Ordinary or the judge a quo, by 
whom he was censured, with the command that the absolu 
tion be given by him within tJiree days. If, then, the 
Ordinary or judge a qiw refuses or fails to impart the 
absolution, within three days, any ordinary confessor can 
give it. 

3079. With all these precautions, it is plain that the 
absolution in the case is at once a just measure of defence 
against a punishment that is possibly unjust, and a reason 
able safeguard to the exercise of legitimate authority. 
Hence the Glossa^ not without strong reasons, seems to 
hold that the absolution ad cautelam should be imparted 
ante ingrcssum litis, i. e., before the judge ad quern 
enters into the merits of the case, not only when there is 
question of doubt as to the validity of a censure, but also 
when there is reason to believe the censure to be unjust, 
though not invalid. 

3080. These regulations are expressly recognized and 
re-enacted in the Decree of Pope Clement VIII. Ad Tollen- 
das, and in the amendments and additions to this Decree 
made by Pope Benedict XIII., and in the Const. Ad 
Militantis of Pope Benedict XIV. They are applied to this 

i Cap. 52, (v. 39.) 

* Decretum dementis VIII. , 1. c. ; Kober, Excom., p. 546. 

* Addit. Bened. XIII. ad Deer. Clem. VIII. xii., xiii. 
4 In Cap. 7 de sent. exc. in 6 v. Porro. 



Repressive Correctional Punishments. 239 

country by the Instruction Cum Magnopere of 1884. Hence 
they are strictly obligatory with us. 

3081. It is plain therefore, that in the case under discus 
sion, namely where a reasonable doubt, either of law or fact, 
exists as to whether the censure is really invalid or not, the 
person censured cannot take it upon himself to decide of his 
own accord, and in his own favor, the question of the 
invalidity of the punishment. He must, therefore, appeal, 
and thus submit the question at issue to the judge ad quern. 
But pending this appeal he is exempted from the obligation 
of observing the censure, either in foro interno or in foro 
externo, since, as has been said above, the appeal interposed 
on account of alleged nullity (ex capite nullitatis) against a 
censure, even though already inflicted, has a suspensive, not 
merely a devolutive effect, and because, moreover, the 
absolutio ad cautelam must be granted by the judge ad quern. 

3082. Hence, also, Barbosa x maintains that an Ecclesiastic 
is not to be considered irregular who, having appealed 
ex capite nullitatis, v. g., on the ground that no previous 
warning was given, against a sentence of excommu 
nication (suspension or interdict) pronounced upon him, 
celebrates Mass, etc., pending the appeal. This holds 
even though it be afterwards decided that the appeal was not 
valid. 



ART. VII. 

Procedure before the Metropolitan in Appeals against 
Threatened Censures. 

3083. Thus far, we have spoken of the mode of procedure 
in appeals against censures which are made after the censure 
has been already inflicted. We shall now say a few words 

1 Collect, in. 1. 2, t. 28, cap. ad Prsesentiam 16, n. 3. 



240 Appeals against 

concerning the manner of hearing appeals which are made 
against censures not yet inflicted, but merely threatened. 

3084. How should the Metropolitan or judge " ad quern " 
proceed in taking cognizance of and deciding appeals interposed 
against censures which are merely threatened, but not yet 
inflicted? The decree of Pope Clement VIII. Ad Tollendas 
thus gives the answer : J " Cum a gravamine, quod per defini- 
tivam sententiam reparari nequit, ut indebitas carcerationis 
vel torturae aut excommunicationis, ctiam comminatce, 
appcllatur : nonnisi visis actis, ex quibus cvidcntur appareat de 
gravamine, appcllatio admittatur, aut inliibitio vel provisio 
aliqua concedatur. " 

3085. This decree is thus further explained by Pope 
Benedict XIII. in the Roman Council held in 1725 : 2 " In 
causis vero comminatas injustae carcerationis, torturae vel 
excommunicationis, Sanctitas Sua declarat et mandat, ut 
non expediantur inhibitiones generales et indefinitae, sed 
tantum compulsoriales pro transmissione copiae Actorum 
ad effectum cognoscendi, an sit deferendum necne appel- 
lationi, adjuncta in dictis litteris compulsorialibus inhibitione, 
ut interim judex a quo ad ulteriora non procedat : et qua- 
tenus visis actis, resultet evidens gravamen, tune admittatur 
appellatio cum inhibitione, et causa cognoscatur coram 
judice ad quern; si vero de hujusmodi gravamine non 
constet, remittatur causa ad judicem a quo, cognoscenda in 
prima instantia." 

3086. Now Pope Benedict XIV., in his Const. Ad 
Militantis, 3 decrees that these regulations shall be strict 
ly complied with. His words are: " Ubi vero agatur 
. . . de comminatione censuraruni, observetur omnino dis- 
positio dictorum decretorum Congregationis Episcoporum 
sub rec. mem. Clemente VIII., juxta additiones et decla- 
rationes piaa mem. Benedicti XIII." We note that, as 

1 Art. ix. 2 Addit. et Declar. Benedicti XIII. ad Decretum ix. dementis VIII. 

3 Art. 45- 



Repressive Correctional Punishments. 241 

already shown, the decree of Pope Clement VIII. * 
expressly states that the appeal against a threatened censure 
has a suspensive effect. As the Const. Ad Militantis of Pope 
Benedict XIV. is expressly laid down in our Instruction 
Cum Magnopere as the rule and mode of procedure to be 
followed in appeals, it is apparent that the above regula 
tions fully apply to this country. Cf. our Elements, Vol. I. 
No. 446. 

3087. Finally, what has been said of the appeal lawfully in 
terposed before the censure is inflicted, holds equally true of 
the challenge (recusatio judicis) made against the judge, when 
interposed before the infliction of the censure. In other 
words, a challenge interposed against the ecclesiastical judge 
v.g. t Bishop or Vicar-General, before the censure is inflicted 
by the latter, has a suspensive effect, 2 like the appeal inter 
posed prior to the infliction of the punishment. 3 In regard 
to appeals against censures, see also our New Procedure, 
No. 474. 

1 Art viii. * Can. 16, C. 2, q. 6. 3 Ferraris, v. censura, n. 21. 



CHAPTER VIII. 

UNJUST AND INVALID CORRECTIONAL PUNISHMENTS. 

ART. I. 
When are Correctional Punishments unjust and invalid f 

3088. We have thus far spoken of the nature of correc 
tional punishments, of those who can inflict them, and of 
those upon whom they can be inflicted ; also of the cause 
or crime for which such punishments can be imposed, and 
of the manner in which they are to be inflicted. The laws 
or regulations made by the Church on these heads are of 
two kinds: Some prescribe conditions or formalities 
which are essential. Consequently, if they are omitted, the 
censure is regarded as not having been inflicted at all, and 
is therefore invalid. Others lay down regulations which 
are not considered by the law as essentially necessary ; 
hence, if they are omitted, the punishment will be illicit or 
unjust, but not invalid. 

3089. Therefore a censure is just and valid, when all the 
requirements of the law of the Church, both essential and 
non-essential, have been accurately complied with by the 
ecclesiastical judge. It is invalid, when a substantial or 
essential condition prescribed by the Church is disregarded. I 
Finally, it is unjust, when a non-essential condition or for 
mality is omitted, or when there is either no cause or crime 
at all, or one not sufficiently grave to warrant the infliction 
of the punishments in question. 2 We shall now examine 
more closely the effects which these three kinds of cen- 

1 Schmalzg. 1. 5, t. 39, n. 8. 

8 Kober, Excom., p. 202; Id., Susp., p. 76; Stremler, 1. c., p. 212. 



Unjust and Invalid Correctional Punishments. 245 

sures produce, and see how a person who is visited with 
an unjust or invalid censure should conduct himself, and 
what means the law of the Church places in his hands to 
protect himself against them. 



ART. II. 
Effects of Correctional Punishments which are Just and Valid. 

3090. When all the prescribed formalities, both essential 
and non-essential, have been carefully observed by the 
Superior who inflicts the punishment, the censure is valid and 
just, produces its full effect both in foro interno and in foro 
externo, and must, as a rule, be observed by the person 
censured. We say, as a rule ; for as (a) the fear of a great 
evil, (b) or urgent necessity, exempts a person from incurring 
a censure, even though he does the act forbidden under 
censure, so does it also excuse him from the external observ 
ance of a censure which he has really, justly, and fully 
incurred. 

3091. Thus, where a person who has justly fallen under a 
censure would, by observing it, v.g., by not saying Mass, 
give scandal or defame himself, namely where it would 
become known, or a least suspected, that he had incurred 
censure, he is not obliged to conform externally to it. Of 
course this supposes that the censure is occult. The same 
holds of the case of urgent necessity, v.g., the necessity of 
saying Mass in order to administer the viaticum to the 
dying. 1 

3092. With these exceptions, the censure which is just 
and valid must be observed both in foro interno, i.e., before 
God and in conscience, and also in foro externo, i.e., in the 
eyes of the law, and the person thus censured must conform 
to the punishment publicly as well as in secret and privately. 

1 Stremler, I.e., p. 222. 



244 Unjust and Invalid Correctional Punishments. 



ART. III. 

What Effects are produced by " unjust " Censures f 

* 

3093. We have seen that a correctional punishment is 
unjust (censura injustd], though valid, when a non-essential 
formality has been neglected, or when there is either no 
crime at all, or one not sufficiently serious to justify the 
censure. Now the absence of a crime or sufficient cause 
may happen in three ways: i. Where in reality the 
accused has neither committed the crime, nor been proved 
guilty of it according to the allegata et probata of the trial. 
In this case, the censure is not merely iinjust, but ipso 
jure, null and void. For the sentence inflicting it would 
contain an intolerable error on its very face. * 

3094. 2. Where the accused has indeed really committed 
the crime sufficiently grave to deserve a censure, but has 
neither legitimately confessed it, nor been juridically con 
victed of it. In this case, also, the censure inflicted is 
null and void, and that ipso jure, and produces no effect 
whatever, at least /;/ foro extcrno. * For, although in this case 
there is a sufficient cause in itself, or sccundum se, and 
although it is known privately to the ecclesiastical judge, 
yet it does not exist judicially, or sccundum judiciuvi, or in 
foro extcrno. 

3095. 3. The third case of absence of sufficient cause or 
crime is where there is in reality no crime or cause, and 
where, nevertheless, one has been juridically established, 
u.g., by false and perjured witnesses, by forged documents, 
or by false confession of the accused, extorted from him by 
grave fear. Thus a person may be perfectly innocent, that 
is, guilty of no crime, or at least, of no crime sufficiently 

1 Cap. Per tuas, et cap. Venerabilis Potest, de sent, excom. in 6. 
* Reift., 1. 5, t. 39, n. 39. 



Unjust and Invalid Correctional Punishments. 245 

grave to justify the infliction of censure, and yet \>t juridically 

convicted of crime sufficiently grave to deserve censure. 

3096. Here there is in reality no cause whatever. It is 
true that the crime has been juridically established ; that all 
the prescribed formalities have been carefully observed by 
the Bishop ; that the canonical admonition has been properly 
given ; that the trial has been conducted in the most 
correct manner. But the evidence was false ; the documents 
forged ; the witnesses perjured. The Bishop was misled. 
Or again, the judge may be animated by personal feelings, 
by passion, ill-will, hatred, or feelings of revenge ; and 
actuated by these motives, he may, under the guise of the 
strict and accurate observance of all the required formalities, 
impose censure upon a subject whom he knows to be 
innocent. * 

3097. Now it is certain that the censure thus inflicted is 
wholly unjust, and produces no effect whatever in foro 
interno, that is, before God and in conscience, and, therefore, 
can be completely disregarded in private. 2 Nevertheless, 
it is valid and produces its effect in foro cxtcrno. Why ? 
Because it has been inflicted in accordance with all the forms 
of law, and the cause or crime, though really not committed, 
has nevertheless been established and therefore exists in 
foro cxtcrno. Hence a person thus censured would indeed 
before God and his own conscience be free from the 
censure, and privately he could disregard it. But /;/ foro 
externo he would be obliged to observe it, until it had been 
revoked by the judge ad quern, as enacted in the above law 
of Clement VIII., or until his innocence and the error com 
mitted by the ecclesiastical judge had become publicly 
known. s In this sense is to be understood the oft quoted 

1 Kober, Excom., p. 211. 

" Cap, 28 de sent, excom. (v. 39) ; Cap. I. de sent, et re jud. in 6 (ii. 14) j 
Kober. Excom., p. 216. 

3 Cap. Inquisition! tuae 44, de sent, excom. (v. 39); Reiff., I.e., n. 41-44. 



2^6 Unjust and Invalid Correctional Punishments. 

and oft misunderstood sentence : " Sententia Pastoris, sive 
justa, sive injusta fuerit, timenda est." J 

3098. In fact, if in this case, where all the forms of law 
have been fully observed, the censure could be violated also 
in the external forum, and publicly, the door would be left 
wide open for the violation of the most just censures by 
malicious persons. For these persons, though justly found 
guilty secundum allegata ct probata in the external forum, 
could always claim that, in conscience and before God, they 
were wholly innocent. 2 Again, a person thus unjustly but 
validly censured is, like every body else, bound to avoid 
giving public scandal. Now it is plain that he would give 
such scandal, if he openly and publicly disobeyed the 
authority of the Superior, exercised in a lawful manner, that 
is, according to all the forms of law. * 

3099. Moreover, the natural law itself demands that the 
good of a particular person should give way to the common 
welfare of all. Now it is evident that the common good of 
the faithful requires that obedience should be shown exter 
nally and publicly to the competent authority, when it is 
exercised in accordance with the forms of law, until the 
injustice of the sentence is either declared by the higher 
ecclesiastical authority, or becomes publicly known. 

3100. From this, however, it also follows that the person 
thus censured can completely disregard the censure -pri 
vately, and also publicly, provided it be before persons who 
arc aware of the injustice of the censure, or in places 
where it is not known that the censure has been inflicted 
upon him. In a word, he need not, even in foro cxtcrno, 
or publicly, observe the censure, where he can do so 
without giving scandal, namely, where it has not been 
officially published or is not generally known ; nor in places 
where the censure is indeed publicly known, but where the 

1 Can. I., c. xi., q. 3; Ferraris, v. censura, n. 33. 2 Reiff.,l.c., n. 43. 

3 Cf. Schmalzg., 1. 5, t. 39, n. 83; Leur., 1. 5, t. 39, q. 556, n. 3. 



Unjust and Invalid Correctional Punishments. 247 

innocence of the person censured is also known. For a 
person can give no scandal by disregarding a censure 
before persons who do not know he is under censure, or 
who, if they do know, also know that the censure is unjust 
or void. x 

3101. It must, however, be observed that, although a 
person thus unjustly censured does not per sc incur 
irregularity in foro cxtcrno by violating the censure, yet, if 
it is found out that he has violated it, or if he is accused and 
juridically convicted of such violation, he can be officially 
declared irregular, since he is validly under censure in foro 
externo. Nay, if, upon being so declared, he refuses to cease 
violating the censure, after having been admonished, he can 
be visited with new censures on account of his disobedience 
and seeming contempt of ecclesiastical authority. 2 

ART. IV. 

Effects and Observance of Invalid" Correctional Punishments. 


3102. It has been shown above that a correctional punish 
ment or censure is invalid, and not merely unjust, when a 
substantial formality or condition prescribed by the law of 
the Church is clearly set aside by the ecclesiastical judge. 
An invalid censure, or an invalid sentence inflicting censure, 
produces no effect whatever, either in foro inter no or in foro 
externo. For, like every other invalid punishment or 
sentence, it is regarded by the Sacred Canons, which are 
still fully in force, also in the United States, as not pronounced 
or inflicted at all. No appeal, therefore, is necessary against 
it, since it is needless to appeal against that which has no 
existence in law. 

3103. Hence a person who is clearly under an invalid 
censure can disregard it, on his own authority, both in 

i Kober, 1. c., p. 218. 2 Reiff., 1. c., n. 43. 



248 Unjust and Invalid Correctional Punishments. 

foro interne and in foro extcrno^ as we shall explain more 
fully later on. In truth, the law of the Church, by the 
very fact that it renders a sentence or punishment null and 
void, when it is inflicted without the prescribed essential 
conditions or formalities, deprives it of all effect whatever. 
Besides, the Sacred Canons declare, as we shall see later on, 
that a person may, of his own accord, disregard censures 
which are undoubtedly invalid. 

3104. Now, when are correctional punishments invalid? 
In these three cases: i. Because of want of jurisdiction on 
the part of the Superior inflicting the punishment. This 
can happen (a) either because the Superior has exceeded 
his jurisdiction as limited by law ; (&) or because he is under 
censure himself; for a Superior who is himself excommuni 
cated or suspended cannot inflict censure upon others; 1 
(c) or because the defendant has made an appeal before the 
censure was actually inflicted ; for, as we have seen, an 
appeal interposed against a threatened censure has a sus 
pensive effect ; * (d) or, finally, if the Superior imposes a 
censure upon a person who is not his subject. 

3105. 2. Next, a censure is ipso jure invalid and pro 
duces no effect whatever, when the Bishop or ecclesiastical 
judge neglects a substantial formality in the proceedings, v.g., if 
he fails to give the previous canonical admonitions or 
precept, as described above ; 3 or if he does not give the 
accused a trial, as noted above ; 4 or if he indeed gives the 
trial, but sets aside some substantial formality prescribed 
for trials, v.g., the citation of the accused, or the right which 
the accused has of fully defending himself. 

3106. 3. Finally, censures are "ipso jure" invalid, and not 
merely unjust, when they are inflicted without a sufficient cause 
or crime, AS CANONICALLY AND JURIDICALLY ESTABLISHED. 

For, as we have seen above, 5 correctional punishments can 

1 Can. 4, c. 24, q. i. 2 Supra, vol. i., n. 446. Supra, n. 1757 sq., 2704. 

4 Supra, n. 2065 sq. 5 Supra> n> 2O2I sq> 



Unjust and Invalid Correctional Punishments. 249 

be inflicted only for mortal sins, nay, only for very grave crimes. 
Now, in foro externo, or in the eyes of the Church and of 
the Sacred Canons, as in force also in the United States, 
England, Ireland, and other missionary countries, it is not 
sufficient, as was seen above, that the crime has been really 
committed ; it must be, moreover, juridically proved by 
canonical or legal proof. Otherwise the censure is ipso jure 
null and void. Hence, a censure, like every other ecclesias 
tical punishment, is invalid, not merely unjust, when it is 
inflicted upon a person who has indeed committed the 
crime for which censure has been imposed upon him, but 
who yet has not been convicted of it juridically, that is, by 
canonical proof, juridically obtained. For, in the external 
forum, (and the infliction of censures is always and essential 
ly an exercise of power in foro externo], every offence, no 
matter how enormous, which is not juridically and canon- 
ically proven, is considered as not committed. 

3107. Hence the Bishop or ecclesiastical judge, also with 
us, cannot inflict censure for a crime of the commission of 
which he is perfectly certain simply by private information. 
For to inflict a correctional punishment or censure is always 
a public judicial act, an exercise of public jurisdiction or 
of power in foro extcrno, also in this country and every 
where. * Consequently, it can take place only on public or 
juridical knowledge, that is, on information obtained by the 
Bishop or judge, not privately, but by competent juridical 
documents or testimony produced at the trial. 2 For the 
nature and various kinds of canonical or juridical proofs, 
see above. 3 

3108. We say competent juridical documents;* in othei 
words, the proofs shall be canonical or legal (probatio cano- 
nica, legalis], that is, they shall have those qualifications and 
conditions which are prescribed by the law of the Church, 

1 Schmalzg., 1. 5, t. 29. n. 80. 2 Schmalzg., 1. 5, t. 39, n. 80. 

3 Supra, n. 813 sq. 4 Kober, Susp., p. 61. 



250 Unjust and Invalid Correctional Punishments. 

Consequently the proofs must be (a) without any flaw or 
defect ; (#) full and perfect ; (c) produced during the trial or 
citato, parte, that is, they are to be produced in the presence 
of, or at least communicated to the accused, and his defence 
or answer thereto is to be received. x 

3109. Hence, if, for instance, the ecclesiastical judge 
should, except as stated in Art. XX. of the Instruction Cum 
Magnopcrc, admit the testimony of witnesses who are clearly 
not omni exccptione majorcs, and should condemn the accused 
on their testimony, the censure would be not merely unjust, 
but ipso jure invalid. For in this case the judge would 
openly violate an essential prescription of law, which 
requires canonical proof (probatic Icgalis] for conviction. In 
like manner, if the ecclesiastical judge should inflict a cen 
sure for an offence which, though legitimately proven 
sccundum allcgata ct probata, is yet clearly insufficient to 
warrant the imposing of a censure, the latter would be 
invalid, and not merely unjust. For he would violate a 
substantial requirement of the law, which forbids the in 
fliction of censure except for grave and sufficient crime. 

3110. It will be seen, then, that, while a censure which is 

1 Thus Pope Eleutherius enacts : " Caveant judices ecclesise, ne absente eo, cujus 
causa ventilatur, sententiam proferant, quia irrita frit." (Can. 2, c. 3, q. 9). Pope 
Cornelius ordains : " Omniaquoe adversus absenies in omni loco aut negolio aguntur 
aut judicantur, omnino evacuentur." (Caw. 4, c. 3, q. 9). Pope Felix, writing to 
the Bishops of France, decrees: "Absente adversaria" (reo) "non audiatur accusator " 
(Promoter fiscalis) "nee sententia, absente alia parte, a judice dicta, ullam obtineat 
firmitatem." (Can. II, c. 3, q. 9). 

Hence it is a well recognized principle that all ex parte or one-sided proceedings 
are null and void. Consequently the inquiry which precedes the citation (processus 
informativus} has no legal effect whatever, so far as concerns the establishment of 
the crime, unless all that was done in the inquiry be fully communicated to the 
defendant, and his answer or defence, or objections received. Thus only does the 
processus informativus become legalized. This communication or legalization 
(legitimatio processus} has for its object to convince the accused that no error or 
malice has crept into the proceedings, and also to enable him to defend himself. 
(Todeschi, Man. du Droit Can., p. 58). 



Unjust and Invalid Correctional Punishments. 251 

.unjust, must be observed in for o cxterno, until it is revoked 
by the ecclesiastical Superior, or until its injustice becomes 
known, a censure which is invalid need not per se be observed 
either " in foro inter no " or " externo" The reason of this 
difference of effect is that in the case of an unjust correctional 
punishment the ecclesiastical judge, though setting aside 
non-essential formalities, yet observes those which are essen 
tial. Consequently his action stands before the law until 
it is properly reversed. But in the case of invalid censures, 
as in the case of all other invalid punishments, the ecclesias 
tical judge acts in direct violation of substantial prescrip 
tions of the law of the Church; he exceeds the limits of his 
authority ; therefore he acts simply as a private individual, 
and his acts have no force whatever in the external forum. 

3111. Nor can it be objected that scandal might some 
times be given by persons disregarding invalid censures, 
since in some cases it might happen to be generally known 
that the censure had been inflicted upon such or such a 
person, and on the other hand it might not be known that it 
was invalid. The objection does not seem to us well taken. 
For this case is no longer supposable at the present day, 
since nothing would be more easy than to make known the 
defect which renders the punishment null and void. Again, 
the scandal, if any, would be produced, not by any fault on 
the part of the person censured who disregards the censure, 
but by the illegal action of the ecclesiastical judge. Fi 
nally, no one is bound to avoid a pharisaical scandal. 

3112. While, however, it is true that a person can, of his 
own accord, disregard an invalid censure, and that both 
in the internal and external forum, privately and even 
publicly, provided the nullity be known publicly, it is 
nevertheless equally true that the nullity in the case must 
be certain, clear, and wholly beyond any reasonable doubt. For 
where there is any reasonable doubt, either of law or fact, as 
to whether the censure is invalid or not, the action of the 



252 Unjust and Invalid Correctional Punishments. 

Superior holds good, until it is reversed by the higher 
ecclesiastical judge. * Hence, in the case of doubt, the 
person censured cannot of his own accord disregard the cen 
sure, but must appeal ex capite nullitatis to the judge ad 
qucin, in order to have the punishment declared invalid. 
This appeal, however, has, as was seen, a suspensive effect. 
Now, practically speaking, such doubts may not unfre- 
quently arise. Thus, sometimes, a dubium juris may present 
itself, v.g., it may not be clear whether a certain formality 
or condition is prescribed by the law of the Church as sub 
stantial or merely as accidental ; as entailing nullity or 
merely illicitness. At other times, a dubium facti ma}* crop 
out ; v.g., it may be doubtful whether, as a matter of fact, 
the ecclesiastical Superior has really exceeded his jurisdic 
tion or set aside some essential formality or requirement. 

ART. V. 
Effects of Censures which are " a jure " and " latce sentential 

3113. What \ve have hitherto said applies to correctional 
punishments inflicted by the Bishop or Superior, in particu 
lar cases, i.e., to censures ab Jiominc, per scntentiam particular cm, 
and also to censures a jure which are fcrendce sottcntice. 
We come now to correctional punishments which arc in 
flicted by the law itself and are incurred " ipso facto" By 
the law we here mean, not merely the general law of the 
Church, but also all particular or local laws, such as synodal 
statutes. 

3114. Now, as we have seen, censures a jure which are 
lata sententicz are incurred, in foro interne, even though the 
crime is not juridically proved, provided it has been really 
committed. But in foro cxterno these punishments are not 
incurred, until the Bishop or ecclesiastical Superior has 

1 The rule of all Roman and canon law is : " In dubio standum est pro vi-Jore 
actus." 



Unjust and Invalid Correctional Punishments. 253 

given the accused a trial and pronounced declaratory sen 
tence. In other words, the Bishop cannot pass declaratory 
sentence, or publish the censure in the case, unless the crime 
has been juridically proven, or is completely notorious. 

3115. Now, a person who has incurred a censure in foro 
interno must indeed observe it in foro intcrno, i.e., in con 
science and before God. But he is not bound to defame 
himself. Hence, if he cannot observe the censure externally, 
and before others, without causing them to suspect that he 
is under censure, he is not bound to conform to the censure 
publicly. We say, who has really incurred, etc. ; for if a person 
commits the deed or crime to which the censure is ipso jure 
annexed, but has acted from ignorance, as explained above, J 
or from fear or inadvertence, he does not incur the censure, 
even in foro interno, and hence need not observe it either 
privately or publicly. 

3116. The same holds, when the law itself or statute 
commanding or prohibiting something under censure is null 
and void. For the censure is an accessory of the law or 
statute, and is therefore void, if the statute itself is invalid. 

1 Supra, n. 1702. 



CHAPTER IX. 

PUNISHMENTS INCURRED FOR DISREGARDING CENSURES. 

3117. Persons upon whom a correctional punishment has 
been validly and justly inflicted and who are not excused 
from its observance by any of the reasons given in the 
preceding article, v. g. y by reason of an appeal interposed, 
must abstain completely from those acts which the censure 
incurred by them forbids. If such a person nevertheless, 
knowingly and maliciously, performs such acts, he is guilty 
of a wilful violation of the censure and commits a mortal sin. x 
For suchj conduct is evidently a grave disobedience to the 
Church, and implies contempt of the Church and her 
coercive power. 2 

ART. I. 
Irregularity as a Punishment for violating Censures. 

3118. The Church has, moreover, established severe positive 
punishments for such violation of censures. The first of 
these is irregularity or canonical disqualification to receive 
orders or to perform tJie functions of orders, tvJietlier major or 
minor, which a person has already received. 3 Canonists prove 
this from the Cap. Cum&terni i de sent, ct re jud. in 6 (ii. 14), 
where Pope Innocent IV. decrees that ecclesiastical judges, 
both ordinary and delegated, who shall allow themselves to 
be influenced in their acts by personal motives, such as 

1 Cap. ult. de cleric, exc. min. (v. 27). 2 Kober, Susp., p. 95. 

3 Supra, n. 1925 sq. 



Punishments incurred for disregarding Censures. 255 

hatred, feelings of revenge, favoritism, fear, gain, or hope of 
gam, or other unworthy motives, shall be ip so facto suspended 
from their office " ab executione officii " for one year; 
and if during said year they presume to exercise an act of 
"ordo," they shall become irregular.^ They prove the same 
also from the Cap. Cum Medicinalis I de sent, cxcom. in 6 (V. 
1 1), where the same Pope Innocent IV. enacts that ecclesi 
astical judges who dare to inflict censures without the 
formalities prescribed in said " caput " and explained 
above 2 shall incur ipso facto suspension for one month 
" ab ingressu ecclesiae et divinis officiis," and if, during this 
month, when they are suspended, they dare to perform 
" officia divina," they shall incur irregularity. 3 

3119. It is to be noted, however, that not every wilful 
violation of a correctional punishment produces irregularity; 
but only that which consists in the exercise of orders, major 
or minor. 4 Thus, if a person who is, for instance, suspended 
ab ordine nevertheless performs acts of the or do, v. g., says 
Mass or administers the sacraments, he incurs irregularity. 
But if a person who is, for instance, suspended merely from 
acts of jurisdiction nevertheless performs acts of jurisdiction 
and even of the or do, he incurs no irregularity whatever. 
Why ? Because by his acts of jurisdiction he violated the 
censure, it is true. But the law of the Church does not 
impose irregularity for the violation of such a censure. By 
performing acts of order, in the case, the person has not 
violated any censure, since he was suspended only from 
jurisdiction, not from orders. Hence a person incurs irreg 
ularity only when he is forbidden by his censure to exercise 
acts of order v. g., when he is suspended ab ordine and 
when, notwithstanding, he does perform an act of the or do. 5 

1 " Quod si suspensione durante damnabiliter ingesserit se divinis irregularitatis 
laqueo se involvet" (Cap. Cum JEterni cit.) 

2 Supra, n. 2044. sq. 3 Kober, 1. c. 4 Supra, n. 1929. 
5 Schmalzg., 1. 5, t. 39, n. 308. 



256 Punishments incurred for disregarding Censures. 

3120. Irregularity is always incurred if so facto, and 
absolution from it reserved to the Pope. l As to the 
special faculties granted our Bishops by the Holy See, of 
absolving from irregularities, see our Notes. * As" we have 
already observed, no violation of a correctional punishment 
produces irregularity, unless it is intentional, wilful, and 
malicious, and therefore committed knowingly and wilfully. 
For irregularity, as was shown above, is a very severe 
punishment, and therefore cannot be contracted where there 
is no crime, that is, where the violation of the censure, 
though justly and validly incurred, is unintentional or 
excusable, v. g., because of urgent necessity, or for the 
purpose of avoiding defamation or scandal, or other just 
motive. 3 

% 3121. Here we also remark that, when a censure is null 
and void, as we have seen in the preceding Article, it 
produces no effect whatever, and consequently its violation 
can never produce irregularity. 4 We also observe with 
Card. Petra, that, when a sentence or censure is notoriously 
unjust, such injustice is equivalent to nullity of censure and 
has the same effects. 5 Consequently also, even in those 
cases where, as was shown in the preceding Article, a per 
son should sometimes externally and publicly observe an 
unjust or invalid censure, in order not to give scandal, vet 
if such a person chooses nevertheless to disregard tne 
censure publicly and give public scandal, he would not 
incur irregularity, since irregularity is produced only by 
the violation of a censure which is just and valid. 

i Cf. Cone. Trid., sess. xxiv., c. 6 de Ref. 

3 Here is the faculty: " Dispensandi in quibuscumque irregularitatibus. . ." 
(Fac. form. I apud our Notes, p. 463)- 

3 Prsel. S. Sulp., n. 821. 4 Supra, n. 3109. 

6 Card. Petra, Com. in Const. Innocentii VI. Cum onus, t. iv,, p. 126, 
Venetiis, 1741. 



Punishments incurred for disregarding Censures. 257 

ART. II. 

Dismissal as a Punishment for disregarding Censures. 

3122. The next punishment is, that if, upon being duly and 
canonically admonished, these persons do not leave off 
violating censures, but continue obstinately to perform acts 
of the " ordo" in direct violation of the censure, they can be 
dismissed (privatio), nay, even forever deposed (depositid) from 
their offices and benefices. * This punishment is ferendce 
sentential and, as has just been intimated, must be preceded 
by a special canonical warning, since it can be imposed only 
upon those who obstinately and contumaciously disregard 
correctional punishments. 2 Kober 3 holds that, even where 
the censure has been inflicted for a fixed period or as a vindi 
catory punishment, its violation produces irregularity. * 
Others deny this. 5 

ART. III. 

Other Punishments incurred for violating Censures. 

3123. Hitherto we have spoken of the punishments de 
creed for such a violation of a censure as is caused by an 
act of order, major or minor. 6 Now, what are the punish 
ments incurred by those who wilfully and maliciously 
disregard a censure by exercising acts of jurisdiction ? 
First, they certainly commit a mortal sin. Secondly, all acts 
of jurisdiction performed by them are ipso facto null and 
void, and those persons who are subject to a Superior thus 
exercising jurisdiction, in violation of a censure incurred by 

1 Cap. 3, 4, 6 de cleric, excom. min, (v. 27.) 2 Stremler, 1. c., p. 219. 

3 Susp., p. 95. 

4 Arg. cap. i de sent, et re jud. in 6 (ii. 14.) ; Cap. I de sent, excom. in 6 (v.n). 

5 Cf. Craiss., n. 1796. e R e iff., 1. 5, t. 27, n. 22; Ib,, adnotatio xl. 



258 Punishments incurred for disregarding Censures. 

him, need not, nay, cannot obey him. l Thirdly, besides, the 
higher Superior may impose such other punishments as, in 
his judgment, the circumstances of the case namely the 
scandal given, the malice of the offence will justify. 2 
Fourthly, there are other specific punishments decreed by 
the Sacred Canons, which, however, we shall discuss in the 
various parts of this work, as occasion offers. 

1 Kober, 1. c., p. 104. a 15., p . 103. 



CHAPTER X. 

WHO CAN RELEASE FROM REPRESSIVE CORRECTIONAL 
PUNISHMENTS. 

ART. I. 
Do these Punishments cease of themselves ? 

3124. The object of correctional punishments, as we 
have seen, is chiefly to cause the delinquent to reform and 
make satisfaction for what he Jias done. The culprit is, to use 
the words of the Apostle, delivered over to Satan, in order 
that his spirit may be saved. 1 To reclaim the erring and 
wayward sinner is the primary and great object of the 
Church when she inflicts correctional punishments. Hence 
she never leaves tne offender out of sight when she has 
visited him with a censure. Thus, while, on the one hand, 
v. g., an excommunicate who is to be shunned vitandus 
is excluded from assisting at Mass and the other functions 
of divine worship, he is allowed to be present at sermons, 
because the word of God may perhaps bring him back to 
repentance. 2 The Bishop who has inflicted the censure 
is expressly commanded to constantly admonish, encourage, 
and urge him to return to the path of duty. He should 
unceasingly and lovingly follow the wayward offender, as 
the Good Shepherd followed the lost sheep, and by his 
fatherly kindness, so to say, compel him to return to the 
path of virtue. 

3125. From this it would seem that, as soon as the end of 
the correctional punishment has been attained, that is, as 
soon as the delinquent has become penitent, made satisfaction, and 

i I Cor. v. 5. 2 Kober, Excom., p. 448. 



260 Release from Repressive Correctional Punishments. 

repaired the consequences of his guilt, the censure should 
also cease of itself. This, however, is not the case. For 
in order that a censure, inflicted upon a person as a censure, 
may cease, the intervention of the ecclesiastical judge or Superior 
and a formal remission (absolutio) on Jiis part are necessary. 1 - 
For, as the inflicting of the censure is an act of jurisdic 
tion, so must also its withdrawal or removal be effected 
by an act of jurisdiction. And as the Church binds by the 
censure, so also must she loose from it, by a special act or 
exercise of her authority. " Omnis res," says the law of 
the Church, " per quascunque causas nascitur, per easdem 
dissolvitur." 2 

3126. In fact, it is manifestly in the interest of a proper 
and well regulated discipline that not the person under 
punishment, but the Church or proper Superior shall be the 
judge to decide whether the offender has really become 
penitent, made proper amends, and is therefore entitled 
to regain his former status and to re-enter upon the 
possession and enjoyment of the spiritual benefits of which 
he had been deprived by the censure. 

3 1 27. On the other hand, it is not left to the nod or whim of 
the ecclesiastical Superior to give or withhold the release 
from the censure as he pleases. * On the contrary, the law 
of the Church, as in force also with us, is that, once the 
delinquent has amended, -he obtains, by that very fact, the 
right to the absolution, and the superior is bound to grant it. * 

3128. We said above, " For, in order that a censure 
inflicted as a censure, " since censures imposed as -vindicative 
punishments, for a specified time, v.g., for six months, lapse 
of themselves with the expiration of the term for which 
they were inflicted, without any intervention o r remission 
on the part of the Superior. Of course, the Superior by 
whom the censure was imposed as a vindicative punishment, 

1 Cap. 15, 28, 38, 58 de sent, excom. 2 Cap. I de reg. jur. (v. 41). 

3 Kober, 1. c., p. 452. 4 Cap. 25 de appell. (it. 28)5 Cap. II de const, (i. 2). 



Release from Repressive Correctional Punishments. 261 

for a certain time may, if he thinks it expedient, shorten 
this term and remit the punishment before the term has 
expired. * 

ART. II. 

Who can release from these Punishments when they are inflicted 
"a jure " and incurred " ipso facto" ? 

3129. Q. Who has the power to relieve a person from 
a censure incurred by him ? 

A. It is necessary to distinguish between correctional 
punishments, (a) which are inflicted by the law and are latce 
sententice, (b) and those which are imposed ab homine, per 
sententiam p articular em ; again, those a jure are either 
reserved or not reserved. I. As to censures inflicted by the 
law a jure" in such a manner as to be incurred ipso facto, 
it would follow, strictly speaking, from what has been said, 
that only the Iawgiver/r0;;z whom they have emanated, or his 
successor, delegate, or Superior can absolve from them, even 
when they are not reserved. For the general rule is that 
correctional punishments can be remitted solely by the Su 
perior by whom they were inflicted. A well regulated 
discipline requires this. 

3130. Hence, strictly speaking and per se, only the Pope 
and an (Ecumenical Council can absolve from a censure, 
even though not reserved, inflicted by the general law of 
the Church ; and likewise, only the Bishop can free a subject 
from censures enacted by Synodal statute or general 
command. However, this would make it very difficult, 
nay, sometimes impossible for the person under censure 

1 Kober, Susp., p. 128. 

3 And by these censures we mean, not only those inflicted by the general law of 
the Church, v.g., those contained in the Const. Ap. Sedis of Pius IX., but also those 
imposed by Bishops, either in diocesan Synod per modum statuti or out of 
Synod, by general mandate per sententiam generalem. 



262 Release from Repressive Correctional Punishments. 

to be released from his punishments, even after he has 
become penitent. J Consequently the general law of the 
Church, made by Pope Innocent III., as construed by the 
universal practice of the Church and the unanimous teach 
ing of canonists, has authorized every confessor to absolve 
from censures, latce sent entice, wlienevcr the lawgiver has not 
reserved the absolution to himself. z This law is still in full 
force, also with us and everywhere. 

3131. It is true that the Pontiff speaks merely of minor 
excommunication, but by parity of reason and because 
favors must be liberally construed, canonists unanimously 
extend the Pontiff s disposition to all censures. Likewise it 
is again true that Innocent III. treats solely of censures 
inflicted by the general law. Yet canonists also apply his 
Constitution to censures enacted by local laws, such as 
synodal statutes or enactments of Bishops per sentcntiam 
gcneralcm, since these censures are placed on the same 
footing with censures a jure communi. 

3132. Hence, in the case, any confessor can absolve from 
correctional punishments, which are (a) inflicted by law, 
general or local, (&) incurred ipso facto, (c] and not reserved. 
The question here arises : Can a confessor, in the case, give 
the absolution also outside the confession or the tribunal of 
penance, and pro foro externo, or merely in the tribunal of 
penance and solely pro foro intcrno ? s There are two 
opinions ; one affirmative, the other negative. Those who 
hold the negative, such as Stremler, 4 base their opinion on 

1 Kober, Excom., p. 464. 

2 The words of the Pope are : " A suo episcopo vel a proprio sacerdote poterit 
absolutionis beneficium obtinere . . . quia conditor Canonis ejus absolutionem sibi 
specialiter non retinuit, eo ipso concessisse videtur facultatetn aliis relaxandi." 
(Cap. Nuper 29, de sent, excom. (v. 39.) 

3 According to Stremler, (p. 242) the absolution from censures in foro externo is 
that which is given outside of confession or the tribunal of penance ; that in foro 
interne is the one which is imparted in the tribunal of penance. 

Ib., p. 240, 243. 



Release from Repressive Correctional Punishments. 263 

the argument that the granting of absolution outside the 
tribunal of penance is an act of jurisdiction in foro externo ; 
Now ordinary confessors have no such jurisdiction ; 
hence, etc. 

3133. The affirmative, which is the opinion of St. Alphon- 
sus, ] Varceno, 2 and others, is that every confessor can 
give the absolution in question outside the tribunal of penance 
and pro foro externo. This seems to us the more probable 
opinion. For while it is true that simple or ordinary con 
fessors have no jurisdiction in foro externo, by virtue of 
their office, yet it is also true that they possess this juris 
diction in the case under discussion by virtue of special 
and express authorization of the common "law of the Church, 
as laid down in the decretal Nupcr of Innocent III., above 
quoted. In fact, this decretal places the sacerdos proprius, 
by whom is meant not only the parish priest, but every 
confessor, as canonists agree, on a footing of perfect equality 
with the Bishop, in regard to the granting of the absolution 
in question. 3 

3134. Q. Who can release from correctional punishments 
which are inflicted by the law (a jure] and are incurred 
" ipso facto," when the author of the law in question has ex 
pressly reserved the absolution to himself? 

A. (a). Only the law-giver himself, or the Superior who 
has made the law containing the censure, and who has 
reserved the absolution to himself ; (ft) his lawful successor 
in office, (c) or his delegate, (d) or his direct and higher 
Superior. We say, his higher Superior ; consequently the 
Pope can release from all correctional punishments reserved 
by Bishops, throughout the whole world ; Generals of 
religious orders, from those reserved by inferior religious 
Superiors. The Metropolitan cannot absolve from the cen 
sure reserved by his suffragans, save when he makes the vis- 

1 L. vii.. 70. 2 Comp., p. 908. * Kober, Excom., p. 469. 



264 Release from Repressive Correctional Punishments. 

itation of the province, and when a case is appealed to him. * 

3135. Again we say, his lawful successor in office ; for 
the successor is considered as one and the same moral person 
with his predecessor, and therefore possesses the same 
power. Hence, whenever the Bishop dies, or is removed 
or transferred, or resigns, or in any other way loses his 
office and jurisdiction, the Cathedral Chapter, 2 through its 
Vicar-Capitular, 3 (with us, administrator) can absolve from 
all censures reserved by the Bishop to himself. 

3136. We say also, his delegate or representative ; for 
the Bishop or other Ordinary judge can at any time 
authorize another person to act for him in this matter, in 
such a manner that the absolution given by this delegate 
will have the same effect as though it had been imparted 
by the Ordinary himself. In fact it has become customary 
for the Pope and Bishops to delegate this power to a num 
ber of inferior ecclesiastics, in order that the persons under 
censure might not be put to the hardship of being obliged 
to apply to the Pope or the Ordinary himself for the absolu 
tion. 4 The Bishop or other Ordinary is perfectly free to 
select as his delegate for the exercise of this power any 
worthy ecclesiastic. He is, moreover, at liberty to bestow 
upon such delegate or representative the power to absolve 
either only in foro intcrno, or also in foro extcrno. 

3137. Besides the cases just mentioned, where the Bishop 
or other Superior, in a special and personal manner, delegates 
others, there are other cases, where the law itself authorizes 
inferiors to release from the punishments under discussion, 
namely from censures which are inflicted a jure and are in 
curred ipso facto latce scntenticz, and are moreover reserved. 
For these cases we refer the reader to Vol. I., Nos. 682, 683. 
For the special powers of the Bishops of the United States, 
see above, Vol. I., No. 684. 

1 Cap. 5, 7 de sent, excom. in 6 (v. II). 2 C. I. de major, in. 6 (I. 17.) 

3 Cone. Trid., sess. 24, c. 16 de Ref. 4 Kober, Excom., p. 483. 



Release from Repressive Correctional Punishments. 26; 



ART. III. 

What Superior can remit these Punishments, when they are 
" ab homine " ? 

3138. We come now to the remission of correctional punish 
ments, which are imposed " ab homine per sententiam specialem." 
These punishments or censures being inflicted by a particu 
lar sentence of the ecclesiastical judge, and not by the law, 
are always, by that very fact, regarded as reserved, and 
therefore can, without being expressly reserved, be remitted 
solely by that ecclesiastical Superior by whom they were inflicted, 
or by his successor in office, or by his representative or delegate, or 
by his higher Superior, and no one else. l This follows from 
the principles already fully explained. This is, moreover, 
clearly required in the interests of proper discipline and 
order. For if the punishment inflicted by one Bishop or 
Superior could at will be remitted by another Bishop, all 
discipline, order, and respect for authority would cease. 2 

3139. We say, or by his successor or representative ; this 
point needs no further explanation ; since what we have 
said above on this matter applies here also. 

3140. We say again, or by his higher Superior. The 
Metropolitan, being indeed, as we have seen, the Superior 
of his suffragan Bishops, though not pleni juris, can release 
from the censures of suffragans which are ab homine per 
sententiam particular em only an appeal and during visitation, 
but not otherwise. When a person upon whom a censure 
has been inflicted by his Bishop, per sententiam specialem y 
appeals to the Metropolitan against the censure, the latter 
can, nay, is strictly bound to admit and take cognizance of 
the appeal. 

3141. In regard to the manner in which appeals against 

1 Arg. L. 3 ff. de re jud. (42. I) ; Can. 51, dist. I de pcenit. 

2 Schmalz., 1. 5, t. 39, n. 93 ; Kober, I.e., p. 452. 



266 Release from Repressive Correctional Pimishments. 

censures are to be made, prosecuted, and heard, the law of 
the Church is that the same rules are to be followed as in 
all other appeals. * These rules have been fully explained in 
this work, both in the first volume, pp. 193 sq., 425 sq., and 
in the second, pp. 286 sq., to which places we refer the 
reader, and also in this third volume, Nos. 3051 sq. 

3142. From what has been said, it follows that, when a 
person who has incurred a censure ab hominc per sententiam 
specialem leaves the diocese of his Ordinary who censured 
him, he nevertheless cannot be absolved by any other than 
the Bishop by whom the censure was inflicted. Likewise, 
when a person has committed a crime in a strange diocese 
and is placed under censure by the Bishop of the place, he 
cannot be absolved by his own Bishop, save with the con 
sent of the Bishop who imposed the censure. 

3143. Finally, what has been said concerning absolution 
from censures ab homine per sententiam specialem applies also 
to censures a jure \v\\en fcrendcz sententice. For the latter, in 
order to be really contracted, must be inflicted by special 
sentence, and are therefore placed on the same footing 
with correctional punishments ab homine per sententiam 
specialem. 

* Kober, 1. c., p. 83. 



CHAPTER XI. 

FORMULA, CONDITIONS, AND MODES OF RELEASE FROM 
CORRECTIONAL PUNISHMENTS. 



ART. I. 

Formula of Absolution or Release, 

3144. The law of the Church does not prescribe any 
particular form of absolution from censures or correctional 
punishments. It is sufficient that the will to release or absolve 
be clearly manifested. This may be done by word of mouth 
or in writing. Thus, when the Pope confers a benefice upon 
an excommunicate, he is regarded as eo ipso absolving him 
from the excommunication. * 

3145. We say, clearly manifested; for the will alone does 
not suffice ; it must be manifested by some external sign, 
word, or action. It is not absolutely necessary that the per 
son to be absolved shall be present ; for as a person who is 
absent can be put under censure, by letter, so can he be 
released from it in like manner. 2 Nay, a person can be 
absolved by proxy. Thus it will be seen that the release or 
absolution from censures differs in various ways from 
sacramental absolution from sin. It is not necessary to 
express in the absolution the cause, i. e., crime, for which 
the censure was inflicted, though it is expedient to do so. 

3146. While no particular form of absolution is pre 
scribed, yet when the absolution is given in for o inter no the 
general formula, which the confessor recites immediately 
before giving the sacramental absolution in confession, is 
generally used, namely : " Ego te absolvo ab omni vinculo 

1 S. C. C. 26 Apr. 1749. 2 Schmalzg., 1. 5, t. 39, n. 102, 



268 Modes of Absolution or Release. 

excommunicationis, suspensionis, et interdict!, in quantum 
possum et tu indiges." 

3147. Where the absolution is imparted in for o cxtcrno, it 
is advisable to employ the formula given in the Roman 
Ritual and the Roman Pontifical 3 for absolution from 
censures in foro externo. 3 The absolution must be given 
externally or publicly whenever the censure has been 
officially published. 4 The same holds of the excommunica 
tion incurred for publicly striking an Ecclesiastic, even 
though no official publication of the censure has taken 
place. 5 Stremler 6 holds even that the same applies where 
a censure, though not officially published, is notorious. 

ART. II. 
Conditions of Release from these Punishments. 

3148. Some conditions are required on the part of the 
person releasing, others on the part of the person released, 
i. On the part of the Superior absolving it is necessary (a) 
that he should have power to absolve ; otherwise the ab 
solution is invalid, (b) Next, the Superior, before giving the 
absolution, should obtain full and undoubted information that 
the person to be absolved is penitent and has receded from 
his obstinacy, and also demand from him a promise or 
guarantee that he will in future conduct himself properly. 7 
Nay, when the correctional punishment has been inflicted 
for atrocious and very grave crimes, such as scandalously 
violating churches, severely striking an Ecclesiastic, incen 
diarism, etc., the Superior must oblige him to swear that he 
will obey the commands of the Church, and not commit the 
offence again in future. 8 

1 Tit. de sacramento poenitentiae. 

* Tit. Ordo excommunicandi et absolvendi ; Cf. cap. 28, de sent, excom. (v. 39). 
3 Varceno, p. 908. 4 De Herdt, Praxis Rit., p. 50. 6 Craiss., n. 6463. 

6 P. 243. 7 Kober, Susp., p. 132; Id., Excom , p. 512. 8 Cap. 10, II (v. 39). 



Modes of Absolution or Release, 269 

3149. (c) The Superior absolving must be free from grave 
and tinjust fear (inetus) and violence (vis). For it is plain 
that the competent judge or Superior must act with free 
will, that is, not be coerced, either by unjust fear or 
physical force, into giving the absolution. A release from 
censures extorted by grave and unjust fear or by violence 
is null and void. * (d) He must not be deceived as to the 
principal cause. Hence the absolution is void when it is 
obtained through false representations, 2 unless it is apparent 
that the Superior wishes to absolve, notwithstanding the 
deceit or misrepresentation. 3 

3150. 2. On tJic part of tJie person to be absolved it is 
necessary, though only on pain of the illicitness of the 
absolution, (a) that he should personally ask to be absolved. 
The reason is, that, as these punishments are imposed in 
order to bring the obstinate offender back to the path of 
virtue, they should not be remitted until he has receded 
from his criminal conduct. Now a person refusing to 
apply for absolution would certainly not show that he 
regrets his crimes. We say thougJi only on pain of illicitness ; 
hence, while a person may be absolved without his request 
and even against his will, it should not be done except for 
reasonable causes. 4 

3151. (/;) He must also, as a rule, prior to being absolved, 
whether in foro inter no or in foro cxtcrno, repair the scandal 
he has given, and make satisfaction for the injury or 
damage he has inflicted on a third party. We say, as a rule ; 
for the following cases are excepted : first, where it is 
morally impossible to repair the scandal forthwith ; second, 
where, in the case of injury to a third party, the latter 
condones the injury either expressly or tacitly ; third, where 
the injured party refuses to accept a just satisfaction 

1 Cap. unic. de iis quse metu in 6 (i, 20). 
3 Cap. 22 (v. 39) ; Kober, Susp., p. 134. 
3 Schmalzg., 1. c., n. 99. 4 Schmalzg., 1. c., n. 100. 



2 jo Modes of Absolution or Release. 

offered ; fourth, where the person to be absolved is unable 
to make restitution, in which case, however, he must either 
give a proper guarantee or promise on oath to make resti 
tution as soon as he can. * 



ART. III. 
Modes of Release from these Punishments. 

3152. Q. In how many ways can a person be released 
from correctional punishments? 

A. In these: i. Generally speaking, and apart from spe 
cial circumstances, the absolution or release from the 
censure is granted absolutely and unconditionally. 

3153. 2. But there are cases where it is either inexpe 
dient or impossible to grant the release in so perfect and 
complete a manner. The Superior may find himself obliged 
to make the absolution dependent on certain conditions, so that 
it will take effect only after these conditions are complied 
with, and not otherwise. Hence, if, for instance, the 
absolution is given thus : " Absolve te si satisfeceris," the 
absolution will be valid from the moment it has been given. 
Yet its effects will be suspended until the- condition is 
fulfilled. The moment this is done it takes effect of itself. 
But if the condition remains unfulfilled the absolution takes 
no effect whatever. 3 

3154. All agree that such absolution or release is valid 
and licit, where the condition is of the past or present. But 
some hold that when the condition relates to something 
future, the release is invalid. They argue chiefly that, as 
the sacramental absolution from sins cannot be imparted on 
a condition to be fulfilled in the future, so neither can the 
absolution from censures be given on a condition relating 
to the future. The opposite opinion, however, is to be 

1 Cap. Odoardus, de solut. ; Cap. 23 de V. S. * Kober, Excom., p. 537. 



Modes of Absolution or Release. 271 

retained as the true one. * For it is true, indeed, that the 
sacramental absolution cannot be validly conferred as above. 
But it is also true that the release from censures is not a 
sacramental act, but a judicial sentence, act, or decree, and 
therefore depends on the will of the ecclesiastical judge 
giving it. Therefore the latter can suspend the effect or 
make it contingent on a future condition. A sacrament, on 
the other hand, by virtue of divine institution, produces its 
effect ex opere operate, i.e., at once and immediately, as soon 
as the proper matter and form are present. Hence the 
effect of a sacrament cannot be suspended by a minister. 
Nevertheless, the absolutio conditionata from censures must 
always be considered as the exception to the rule, and should 
not be given by the ecclesiastical judge except for good 
and sufficient reasons of necessity or utility. 2 

3155. 3. The absolutio ad cautelam is the next mode of 
releasing from censures. It is given either as a precaution 
ary measure in the exercise of voluntary jurisdiction, or as a 
provisional and precautionary measure in the course of the 
exercise of contentious jurisdiction. There are many eccle 
siastical acts which, when performed by or in favor of 
a person who is under censure, are either invalid or at 
least entail certain disadvantages upon him. In order to 
prevent such invalidity or disadvantage, and to cut off all 
possible doubt and scruple of conscience, the absolution ad 
cautelam is given, so that, if the party has really incurred a 
censure of which he is supposed to be entirely ignorant, he 
may not suffer therefrom. Thus, in order to remove any 
possible doubt as to the validity of the sacramental absolu 
tion, the absolution ad cautelam is always imparted by the 
Confessor in the tribunal of penance, immediately prior to 
giving the sacramental absolution, in these words : " Do- 
minus noster Jesus Christus te absolvat et ego auctoritate 

1 Schmalzg., 1. 5, t. 39, n. 103. 2 Kober, 1. c., p. 540. 



272 Modes of Absolution or Release. 

ipsius te absolve omni vincnlo cxcommunicationis (suspcnsionis} 
et inter diet i, in quantum possum et tu indigcs" * In like 
manner it is also frequently imparted in advance of the 
conferring of orders, of appointments to ecclesiastical 
offices or benefices, and of the conferring of other favors 
and privileges, in order to remove any possible obstacle to 
the validity of these acts. 2 In all these cases it is evident 
that the absolution ad cautelam is imparted (a) in the course 
of the exercise of voluntary jurisdiction, (U) and either in 
foro inter no or extcrno. It is also plain that the absolution 
ad cautelam, in the above cases, supposes that the censure is 
unknown. 

3156. Besides, the absolution ad cautelam is granted also 
\n judicial proceedings and in the exercise of contentious juris 
diction, where it is doubtful whether a particular censure, 
inflicted upon a person, is valid or not. For, as we have 
shown above, 3 when a person who is visited with censure 
by his Bishop appeals on the ground of nullity of the 
censure, he is to be first provisionally absolved ad cautelam, 
so that he is free from the censure during the hearing of 
the appeal. As will be seen, this sort of absolution is 
made use of only where there is doubt as to the existence 
of the censure, or its validity or justice, but never where 
it is certain that a person has been validly and justly put 
under censure. 

3157. 4. Ad reincidentiam. This mode of absolving, 
which occurs quite frequently, takes place when the 
absolution or release is granted, not permanently, but merely 
for a certain space of time, and with the proviso that, under 
certain contingencies, the censure shall be ipso facto rein- 
curred, in all its extent. 4 Thus a person under a reserved 
censure, who, either because he is in articulo mortis or because 
of some other legitimate reason, cannot present himself for 

1 Rit. Rom. de Sacr. poenit. 2 Cap. Super eo 51 (v. 39). 

b Supra., n. 3037. 4 Kober, Excom.. p. 547. 



Modes of Absolution or Release. 273 

absolution to the Superior reserving, and who is, on that 
account, validly absolved for the time being by a priest or 
confessor having otherwise no power to grant the absolu 
tion, must, according to the express law of the Church, 
present himself to the Superior reserving and receive his 
commands, as soon as he becomes well or the obstacle 
ceases. * If he culpably fails to do so, he falls ipso facto 
again into the censure from which he was absolved. 2 

3158. This absolution differs, among other things, from 
the conditional absolution in this, that, while the latter does 
not produce its effect immediately, but remains suspended 
until the condition is fulfilled, the former takes effect at once 
and remains in force until it is ipso facto revoked by the 
culpable failure on the part of the person absolved, v.g., to 
present himself to the proper Superior. 

3159. 5. Finally, the release from the correctional pun 
ishment may be imparted only as to a certain effect, v.g., in 
order that a person under excommunication may become 
qualified to act as witness, or also as appellant against his 
Bishop. In this case, however, he is not freed from the 
censure itself, but only from some of its effects. 3 

1 Supra, n. 682. 2 Cap. 22, de sent, excom. in 6 (v. n.) 

3 Reiff., 1. 5, t. 39, n. 266. 



SECTION II. 
Repressive Reform Punishments in Particular. 

CHAPTER I. 

EXCOMMUNICATION. 

3160. Having, in the preceding chapter, discussed cor 
rectional punishments in general, we shall now take up each 
one in particular. As we have seen, there are chiefly three 
correctional punishments, namely, excommunication, sus 
pension, and interdict. In the present chapter we shall 
confine ourselves to excommunication, reserving suspension 
and interdict for the two succeeding chapters. 

ART. I. 
Correct Notion of Excommunication. 

3161. The right of expelling refractory members is lodged in 
every society. Every human society which has an external 
organization must possess the right to expel from its body or 
membership any refractory member who, by his own fault, 
has rendered himself unworthy of belonging to it and 
enjoying its benefits and advantages. For it is plain that 
the expulsion of stubborn and ungovernable members is not 
only necessary to protect the honor and good name of a 
society, but, moreover, the only means of preserving its 
very existence. Hence we see, as a matter of fact, that 
every society, association, club, or guild, no matter how 
small, has exercised and does exercise this power. Civil 
society or the State makes use of this power on a large scale. 
It cuts off bad and unruly citizens from communication 
with others, by imprisonment, exile, and even death. 



Excommun ication. 



275 



3162. This right of expulsion is vested more particularly in 
religious societies. If this right is justly vested in every 
society or association, even though it has but a material and 
secular end in view, with how much greater reason should 
it not be lodged in a religious society, that has for its object 
the sanctification of its members. Our natural sense of 
justice and propriety demands that such a society shall 
exclude from its community all those members who, though 
repeatedly warned, nevertheless continue persistently to 
give scandal and to bring religion itself into contempt by 
their wicked life. * Only by exercising the right in question 
and by ejecting from its pale obdurate offenders can such 
a society preserve its own dignity, honor, and usefulness 
among men. 

3163. Hence we find that even the Pagan and heathen 
religions of old made use of this punishment. z Among the 
Jews the right oi expulsion from the pale of the Hebrew 
synagogue was exercised on a large scale. 3 At the present 
day we see that all the Protestant sects exercise this right 
of expulsion even more rigidly at times than the Catholic 
Church. 4 There can be no doubt therefore that this power 
is also vested in the Catholic Church, the only true Church 
of God, and that for two reasons : first, because she is an 
eternal society, and as such she must of necessity possess 
the means to enforce her rules and regulations, and therefore, 
to expel refractory members ; second, because our Lord ex 
pressly wills it. For as He expressly authorized his 
apostles and their successors to receive men into the Church, 
so He also expressly gave them power to expel from her 
bosom such as had proved unworthy members. 5 

1 Kober, Excom,, p. 2. 

3 Cf. Ceesar, de Bell. Gall. 1. 6., c. 13 ; Taciti Ger mania, c. 6. 3 Cf. Esra, x. 8. 

4 Cf. Const, of Ref. Church in America, p. 47; Discipline of the Meth. Ep. 
Church, pp. 134 sq. 

5 Cf. Matth. xviii. 1$ sq. 



276 Excommunication. 

3164. True idea of excommunication. It would be a mistake 
to suppose that excommunication is merely an external 
exclusion from the Church, or the privation of the society 
or company of the faithful ; for it reaches farther and extends 
to the soul itself, and deprives it of spiritual and interior 
favors. 1 It is true that it can never of itself separate a 
man from God and divine grace. Mortal sin alone can do 
so. Consequently, if excommunication is inflicted, even 
though it be with the observance of all the legal formalities, 
upon an innocent person, that is, one who is not guilty of 
mortal sin, it produces no effect whatever, so far as concerns 
his relations with God. 

3165. But when a person has separated himself from 
God by mortal sin, the excommunication certainly aggra 
vates the unhappy state of such a person, adding misery to 
misery, by depriving the sinner, who has lost the grace 
of God, of the helps and graces which the Church 
communicates to her children by the sacraments, of the 
merits and intercession of the saints in heaven, and of the 
public prayers and merits of the faithful on earth. Hence 
excommunication is fitly termed*? spiritual death, a giving 
over to Satan, the beginning of eternal damnation. 2 Only a 
person who can fully realize what an inestimable blessing it 
is to be a child of the true Church can form a correct 
estimate of the severity of this punishment. It is the 
greatest, the severest punishment the Church can inflict. 

3166. Hence it should not be imposed save in the most 
extreme cases, as a last resort, and after all other milder 
punishments have been vainly applied. The chief object of 
excommunication, as we have seen, is to bring the sinner back 
to repentance. He is delivered over to Satan, in order that 
his spirit may be saved. 3 This, however, is not the only aim 
of this punishment. A second end is, to preserve the honor 

- Kober, 1. c., p. 17. 2 Kober, 1. c., pp. 20, 21. 3 II. Cor. xiii. 10. 



Excommun ication. 277 

and dignity of the Church. For, as we have seen, it would 
redound to the disgrace of the Church, if she allowed 
members to remain in her pale whose lives are shameful 
and profligate. 

3 167. Finally, a third object is the good of the other faithful. 
The excommunication is to keep them from being infected 
by the excommunicate, and deter them from following his 
bad example. * Excommunication, as here understood, may 
therefore be denned as the expulsion from the external and 
internal membership of the Church, the complete withdrawal of 
all the graces and privileges acquired by baptism, the separation 
from the living body of Christ, and a thrusting back into the 
helpless state of unredeemed man.* Schmalzgruber thus 
briefly defines it " as a correctional punishment instituted 
by the Church, by which the excommunicate is separated 
from the communion or fellowship of the faithful." 

3168. From this it will appear that excommunication is a 
total exclusion from all the rights and privileges which a 
member of the Church possesses, whether in his capacity of 
simple laic or of an Ecclesiastic. Consequently laics who 
are excommunicated as vitandi are debarred from the right 
to receive the sacraments, or assist at Mass and other 
ecclesiastical functions, or to receive Christian burial, or to 
associate with the faithful, even in purely human matters. 

3169. If the excommunicate be an Ecclesiastic, he incurs, 
besides the above disabilities of lay excommunicates, the 
loss of all his privileges and rights as an Ecclesiastic. 
Therefore he becomes suspended ab officio ct beneficio. 
Hence he cannot say Mass, nor administer the Sacraments, 
nor perform any other sacred function ; neither can he 
exercise any ecclesiastical jurisdiction, nor be appointed to 
any ecclesiastical office, dignity, or benefice. It may, 
therefore, be said, speaking in general, that, as by baptism 

1 Kober, 1. c., p. 29. 2 Ib., p. 32. 3 L. v., t. 39, n. 112. 



278 Excomm un ication . 

a person becomes a member of the Church and acquires all 
the rights flowing from this membership, so by excommuni- 
nication he forfeits, for the time being, all these rights. 
And as by ordination a baptized person becomes an officer 
of the Church and obtains certain powers, so by excommu 
nication he is forbidden to exercise these powers. 



ART. II. 
How many Kinds of Excommunication are there ? 

3170. Excommunication is distinguished into major, which 
is a complete expulsion from the communion of the faithful, 
and deprives the excommunicate of all ecclesiastical 
benefits, and minor, which divests a person merely of the 
communicatio passiva, v.g., of the right to be appointed to an 
ecclesiastical office or benefice. Prior to the Const. Apostolicce 
Sedis, issued by Pope Pius IX., of blessed memory, in 1869, 
everybody communicating with an excommunicate vitandus 
in crimine criminoso incurred major excommunication, and 
those having intercourse with him in divinis, minor. At the 
present day , the minor excommunication, as inflicted by the 
common law of the Church, is entirely done away with, 
since no mention of it occurs in the Const. Apostolicce Sedis of 
Pius IX. 1 

3171. But the major excommunication incurred for 
having intercourse with an excommunicate still exists, 
though it is only incurred in these two cases: i. Where 
a person communicates in crimine criminoso with a person 
who is by name excommunicated by the Pope, riot by any 
other Superior ; in other words, where a person know 
ingly aids and abets (for that is the meaning of communicare 
in crimine criminoso) another in the very crime for which 
he has been nominally excommunicated by the Sovereign 

1 Com. Reat., p. 58; ^arc., p. 914; Konings, n. 1673: Avanz., n. in. 



Excommunication. 279 

Pontiff. l 2. Where Ecclesiastics knowingly and wilfully 
communicate in divinis with persons who are by name 
excommunicated by the Roman Pontiff, and allow them to 
perform officia divina, i.e., those functions which ecclesiastics 
perform as such or as ministers of the Church, 2 v.g., to say 
Mass, or assist at Mass. 

3172. Major excommunication, which, as we have seen, 
excludes a person from the Church and the society and 
communion of the faithful, 8 is called anathema, when it is 
inflicted against heresy or with certain impressive ceremo 
nies, namely, when the Bishop pronounces it surrounded by 
twelve priests in sacred vestments and holding in their hands 
lighted torches, which they then throw down and tread 
under foot, meanwhile uttering certain words of maledic 
tion. 4 By the word excommunication, used without any 
qualification, is always meant major excommunication. 5 
Excommunication is divided, moreover, into that a jure 
and that ab homine ; that which \sferendce and that which 
is latce se nt entice ; that which is just and unjust, valid 
or invalid. All these phrases have been already explained 
by us. 

1 This is the i6th excommunication reserved simply to the Pope, in the Const. 
Apostolicce Sedis of Pius IX. and is thus given in this Const. : " Communicantes 
cum excommunicato nominatim a Papa in crimine criminoso, ei scilicet impendendo 
auxilium vel favorem." 

2 The Const. Apostolica Sedis of Pius IX. thus expresses this excommunication : 
" Clerici scienter et sponte communicantes in divinis cum personis a Romano 
Pontifice nominatim excommunicatis et ipsos in officiis recipientes." Cf. Com. 
in Const. Apostolica Sedis, Reate, 1874, n. 112, p. 58. 

3 Devoti, 1. 4, t. 18, n. 7. Can. Debent, 106, c. II, q. 3; Stremler, p. 254, 

4 Cap. 59, de sent, excom. 



280 Excommunication. 

ART. III. 

What Excommunicates are to be shunned? 
i. Former Discipline. 

3173. Prior to the Council of Constance (1414-1418), the 
faithful were bound to shun, both in a social and religious 
point of view, all persons who had contracted major 
excommunication, whether a jure and ipso facto or ab Jiomine, 
and by special sentence, and that even though their excom 
munication was not officially published. When the crime 
was public the faithful had to shun the excommunicate 

publicly; when it was occult, i.e., known to a few persons 
only, the latter were obliged to avoid him in private. Now 
in those days a great many crimes had excommunication 
ipso facto annexed. Hence large numbers of the faithful 
incurred excommunication and had to be shunned. Add the 
uncertainty of knowing for certain whether they were 
really excommunicated. For frequently no judicial sen 
tence or publication preceded the punishment or censure. 
The faithful were consequently obliged, not unfrequently, 
to rely solely upon their own private judgment as to whether 
such a particular person had incurred excommunication 
or not. 

2. Present Discipline. 

3174. Naturally enough, many grave doubts and harassing 
perplexities arose from such a state of things. Persons 
found it not unfrequently difficult to tell whether they 
could associate with others or not. Many, therefore, very 
properly demanded that the obligation of avoiding excom 
municates should be restricted to those cases where a clear 
judicial sentence, made properly public, left no uncertainty 
whatever in the matter. In view of these circumstances 
Pope Martin V. issued his celebrated Bull Ad Vitanda in the 



Excommunication. 281 

Council of Constance, by which he changed the law as it 
stood then, and enacted that in future the faithful were not 
bound to avoid excommunicates, except (a) when they had 
been excommunicated by name, (b) and when, moreover, 
their excommunication had been officially made public, and 
that not merely in general, but specially and expressly. 

3175. Here are the words of the Pope: "Ad vitanda 
scandala et multa pericula, quse conscientiis timoratis con- 
tingere possunt " (here then is pointed out the scope of the 
Bull, as explained above), " Christifidelibus tenore prassen- 
tium misericorditer indulgemus, quod nemo deinceps a 
communione alicujus, sacramentorum administratione vel 
receptione, aut aliis quibuscumque divinis, intus et extra, 
prastextu cujuscumque sententise aut censuras ecclesiasticas 
a jure vel ab homine generaliter promulgate teneatur 
abstinere, nisi sententia vel censura hujusmodi fuerit lata 
contra personam .... certain a judice publicata vel dcnuntiata 
spccialiter et cxpresse .... salvo si quern pro sacrilega 
manuum injectione in clericum sententiam latam a canone 
adeo notorie constiterit incidisse, quod factum non possit 
aliqua tergiversatione celari,.nec aliquo suffragio excusari, 
nam a communione illius, licet denuntiatus non fuerit, 
volumus abstineri juxta canonicas sanctiones." 1 This rule 
is a safe guide to the faithful in their conduct towards 
persons under excommunication, though it is, at the same 
time, a great protection to those excommunicates whose 
sentence is not published. 2 

3176. It is true that the Council of Basle (1435), Sess. XX., 
Cap. 2, and the Fifth Council of the Lateran (1512-1517), 
Sess. XL, partly repealed the above favorable legislation of 
the Council of Constance, by enacting that the faithful were 
bound to shun all excommunicates whose excommunication 
was public, or notorious, even though their excommunication had 

1 Ap. Kober, Excom., p. 248. z Miinchen, 1. c,, vol. ii., p. 193. 



282 Excommunication. 

not been officially made public. But the Constitution of Pope 
Martin V. nevertheless remained and still remains in full 
force. Thus Pope Benedict XIV. writes: " In suo semper 
vigore permansit (Const Ad Vitanda), non obstantibus con- 
trariis Constitutionibus Conciliorum Basiliensis et Latera- 
nensis." * It is true that Fagnani and some other canonists 
hold that the bull of Martin V. was abrogated by the subse 
quent decrees of Basle and the Lateran. But, as Pope 
Benedict XIV. says : 2 " Ejus (Fagnani) tamen doctrina fere 
communiter rejecta est, cum ubique sit recepta laudata 
Const. Ad Vitanda" 3 

3177. The law, then, of the Church, as it is in force at the 
present day, is that the faithful are not bound to shun the 
company or society of excommunicates, except when the 
latter are publicly denounced by name as having incurred excom 
munication. This rule has now, after the Const. Apostoliccz 
Sedis of Pius IX., no exceptions whatever. For while it is 
true that, by virtue of the Const. Ad Vitanda of Pope Mar 
tin V., persons who were notoriously guilty of laying violent 
hands on or of ill-treating Ecclesiastics 4 had to be shunned, 
both in religious and social intercourse, by the faithful, even 
though their excommunication had not been published offici 
ally, yet by general custom to the contrary, 5 and by the 
Const. Apostolicce Sedis of Pius IX., 6 these notorii pcrcussores 
dericorum need no longer be shunned, save when they are 
officially and by name published as excommunicates. 

3178. Hence it may be said that by the Const. Ad Vitanda 
and the Const. Apostoliccz Sedis of Pope Pius IX. all excom 
munications and other correctional punishments, namely 

1 De Syn., 1. 6, c. 5, n. 2. 2 Ib., 1. 12, c. 5, n. 4. 

3 Cf. Munchen, I.e., p. 192 ; Kober, I.e., pp. 250-255. 

4 Cf. Can. 29, C. 17, q. 4. This famous canon, Si quis suadente diabolo, was enacted 
by Pope Innocent III. and published by him in the Lateran Council, in 1139. 

5 Prael. S. Sulp., vol. iii., p. 272. 

6 Cf. Const. Ap. Sedis, excom. 2, R. P., res. simpl. 

7 Soglia Vecchiotti, vol. ii., p. 329; Cf. Craiss., n. 6504. 



Excommun ication. 283 

suspension and interdict, which are imposed a jure and are 
latce sentential, are, so long as the censure is not published, 
changed in the external forum into correctional punish 
ments which are fercudce sent entice^ so far as concerns the 
obligations incumbent on the faithful to shun the excom 
municate, both in religious and social matters. l 

3179. From what has been said it follows that no person" 
excommunicated a jure, even though he be notoriously 
guilt} of striking or ill-treating an Ecclesiastic or religious, 
and no matter how well-known it may be that he has fallen 
under excommunication, need be shunned by the faithful. 
The reason is that such a person has not been excommuni 
cated by name (the law, whether general or particular, never 
excommunicates by name, as is plain) nor publicly de 
nounced by the ecclesiastical judge. 

3180. Whenever, therefore, a person has incurred excom 
munication, as decreed by law, v.g., by the Const. Apostolicce 
Sedis of Pope Pius IX., in order that the faithful may be 
obliged to avoid his company, whether in the religious or 
in the social and civil life, it is necessary that he be cited by 
his Superior for trial, 2 and that, upon conviction, the sen 
tence be pronounced, declaring that he is guilty of the 
crime, and has consequently fallen under excommunication. 
Afterwards, this sentence must be officially promulgated or 
made public. 3 In like manner, when a person is visited 
with excommunication ab Jiominc, and per sententiam particu- 
larem, namely when, having been placed on trial for crime 
and found guilty, he is by judicial sentence excommunicated, 
he need not be shunned by the faithful, except after this 
sentence has been officially made public by the judge. 

1 Prael. S. Sulp., I.e., p. 272. 

2 Except, of course, where the crime is altogether notorious, in which case, as we 
have seen, no trial is needed, at least theoretically speaking. For, practically speak 
ing, a trial is required even where the crime is notorious. 

a Craiss., n. 6496. 



284 Excommunication. 

3. Publication of the Excommunication. 

3181. How is this publication to be made? It must be 
made (a) officially, i.e., by the judge ; (b) publicly, i.e., in a 
public place, so that it can reach the whole community. 
Hence the sentence of the ecclesiastical judge pronounced 
after the trial in the presence of the parties is not a publica 
tion as here understood. Provided the publication be 
made in a public manner or place, v.g., in the parochial 
church or public square of the city, it is immaterial whether 
it takes place (i) viva vocc, v.g., by public announcement in 
the parochial church during the time of divine service, 
when there is a concourse of people, (2) or in writing, v.g., 
by placards posted in a public place or on the doors of a 
church, or published in newspapers. 

4. Intercourse of tlic Fait/if ill vvith u tolcrati" 

3182. At present, therefore, all persons who are excom 
municated, but whose excommunication is not published in 
the manner above set forth, need not be shunned by the 
faithful. Hence they are called tolerati, or non vitandi, in 
contradistinction to the vitandi, or those whose company 
and society the faithful are strictly bound to avoid. 
Observe, we say the faithful are not obliged to shun the 
society of an excommunicatus tolcratus. For they may, if they 
choose, shun him, and that even publicly, when it is publicly 
known that he has incurred excommunication. In fact, not 
unfrequently it may be very praiseworthy to avoid the 
company of excommunicates who are tolerated, and thus to 
isolate them, both in order to bring them more speedily to 
a sense of their duty, and to guard against the danger aris 
ing from bad company. 

3183. Observe, moreover, that the Const, of Pope Martin 
V., which, as above explained, is at present the law of the 
Church, was made solely in favor of the faithful, not of the 



Excommun ication. 285 

excommunicate himself. The latter s status was not,/rr sc, 
ameliorated. Thus the above Const, expressly says : " Per 
hoc tamen hujusmodi excommunicatos non intendimus 
relevare." Hence a person who is excommunicated as 
toleratus cannot, of his own accord, associate with the faith 
ful. We say, of Ids oivn accord ; for, as we shall see further 
on, he may administer the sacraments to the faithful, etc., 
when he is asked by them to do so. * 

3184. Here the question arises, whether the faithful can 
ask for and receive the sacraments from an excommunicate who 
is tolerated (supposing him to be a priest) and other wise 
associate with him in religious matters. Before answering; 
we premise: i. We say, in religious matters ; for it is per 
fectly plain from what has been said that the faithful can 
keep up full intercourse with an excommunicate who is 
toleratus, in social and civil matters in Jiumanis : 2. The diffi 
culty, in the case, arises from the fact that on the one hand, 
by the Const, of Pope Martin V., as still in force, the excom 
municate toleratus is not allowed himself to have any 
intercourse, in divinis, with the rest of the faithful, while on 
the other the latter are allowed thus to associate with him. 

3185. We now answer: There are two opinions. Some 
canonists hold the negative, on the ground that the excom 
municate would thus be induced to perform an act which he 
is forbidden to perform, and thus to commit sin. " Others 
whose opinion is the more probable affirm that the faithful 
can without doubt ask and receive the sacraments in the 
case from one who is toleratus, even when they know him to 
be under excommunication. For the Const. Ad Vitanda 
clearly allows them to keep up full religious intercourse with 
these excommunicates. Accidentally, however, charity may 
oblige the faithful not to ask the sacraments from such an 
excommunicate, when they know him to be in the state of 

1 Stremler, 1. c.,p. 268. Ib. 



286 Excommunication. 

mortal sin, lest they should thus become the occasion of the 
sacrilegious administration of the sacraments. But when 
there is a good cause, v. g., when a person wishes to place 
himself in the state of grace, or make the Easter duty, he 
is not even bound by charity to refrain from asking for the 
sacraments from such excommunicates. 

ART. IV. 
Canonical effects produced by Excommunication, even at present. 

3186. Before answering, we premise first, these effects 
may be considered (a) in reference to the person who is 
excommunicated : (b) to the other faithful who may come 
into contact with him. In relation to the latter, the effects 
are that they are bound, as we have seen, to shun and avoid 
the excommunicate (provided he is vitandus), like a leper 
spreading around him moral contagion and misfortune. 
In regard to the excommunicate himself (whether he be 
tolcratus or vitandus\ the effect is a total expulsion from the 
Church, so that he is no longer considered a member of the 
Church, loses all the rights he has acquired by baptism, and 
is therefore completely stripped of all the rights and 
privileges attaching to membership of the Church, and 
which are common to and possessed by all the members of 
the Church, in their capacity of members. 

3187. These effects show how pitiable is the state of an 
excommunicate. To be not only deprived of all those 
spiritual graces and benefits which the Church has at her 
disposal and which are accessible to all the other faithful 
and, so to say, their common heritage, but also to be cut off 
from all intercourse, both religious and social, political and 
civil, with them, is an awful punishment. z It is plain that the 
law which prohibits the faithful from having any intercourse 

1 Cf. Miinchen, 1. c., vol. ii., p. 167. 3 Miinchen, 1. c. 



Excommunication, 287 

whatever, social or religious, with the excommunicate who 
is v it andus, is a natural consequence and outgrowth of 
excommunication. For in this manner alone will the 
faithful show their disapproval and abhorrence of the 
excommunicate s rebellious conduct and also be preserved 
from the sinful contagion, and the excommunicate himself 
be more easily brought back to a sense of duty, by his utter 
isolation. 

3188. Hence also excommunication is very justly com 
pared by canonists to the state of a citizen condemned to 
exile. * For, as a Roman citizen condemned to exile lost all 
his rights of citizenship, so also does an excommunicate 
become divested of all his rights as a citizen of the city of 
God on earth, i.e., as a member of the true Church. Ex 
communication, however, is essentially, as to its duration, 
of a temporary character. It is, as we have seen, a spiritual 
medicine, a reformatory punishment. Consequently it must 
be revoked as soon as the delinquent has given proofs of 
amendment. Then must his spiritual exile cease, and the 
penitent culprit be reinstated in his rights as a member 
of the Church. * 

3189. We premise secondly, excommunication (we always 
speak of major excommunication, as the minor no longer 
exists) cuts a person off from the communion of the Church, 
that is, expels him from the bosom of the Church, so far as 
concerns his rights and privileges as a member of the Church, 
but not so far as regards his duties and obligations. Hence 
a person excommunicated remains subject to the laws of the 
Church, just as a person deprived of his rights of citizen 
ship is nevertheless bound by the laws of the land. 3 

3190. We premise thirdly, In order to understand better 
what benefits we are deprived of by excommunication, we 

1 St. Cyprian calls excommunication " an exile from the Church of Christ." Ep. 
49, apud Miinchen, L c., p. 167. 

2 Miinchen, 1. c., p. 166. 3 Stremler, 1. c., p. 264. 



288 Excom ui 21 n ica tion . 

must distinguish between the various kinds of spiritual 
benefits a Christian or member of the Church may possess. 
These benefits are of three kinds; i. Those which are purely 
interior, namely faith, hope, and charity, divine grace. These 
constitute the supernatural bond, which unites the faithful 
to our Lord. 2. Those which are purely exterior, namely, 
which form that communion or fellowship that is simply 
external, namely the ordinary relations of social, civil, or 
secular life, such as conversing together, in a word, all the 
acts of daily social intercourse. 3. Finally those benefits 
which make up the mixed communion, namely certain ecclesi 
astical and exterior acts or ceremonies that produce spiritual 
favors and blessings, by virtue of their institution, as the 
sacraments, the public prayers or suffrages of the Church, 
the sacrifice of the Mass, benedictions, and other religious 
ceremonies and public acts of divine worship ; the satisfac 
tions and merits of our Lord and the Blessed Virgin and 
the Saints, as contained in the treasury of the Church and 
dispensed by her to the faithful by means of indulgences. 

3191. Now it is certain, as has already been noted, that 
excommunication does not dispossess a person of the goods 
of the first class. For they do not depend on, and are not 
directly subject to the power of the Church. She is not the 
exclusive dispenser of them, since God often communicates 
them 4ircctly to the soul, without the Church s intermediary. 
Thus a person who has incurred excommunication for a 
crime may by contrition be reinstated in the grace of God, 
and yet continue to be excommunicated and to suffer all the 
effects of the excommunication. 

3192. Therefore excommunication divests a person only 
of the benefits of the second and of the third class, namely 
of those privileges which we have called purely external, 
and also of those which are mixed. To understand this 
more fully, we must bear in mind that the Church is the 
mystical body of Christ ; that the faithful are the members of 



Excommunication. 289 

this body. "We being many," says St. Paul, 1 "are one 
body in Christ, and every one, members one of another." Of 
this body, Christ is the head. Now, as in the natural body 
of man the various members are constantly influenced, 
acted upon, and directed by the head, so in the mystical 
body of our Lord the Church Christ unceasingly directs, 
assists, and illumines those who are members of this mystical 
body. Thus St. Paul writes : " We may in all things grow 
up in him who is the head ; from whom the whole body, 
being compacted and fitly joined together, by what every 
joint supplieth, according to the operation in the measure 
of every part, maketh increase of the body, unto the 
edifying of itself in charity." 2 

3193. Of the gifts and benefits that accrue to us through 
this membership with Christ s mystical body some flow 
more directly from our Lord Himself, as the head ; others 
more directly from the Church, to which our Lord com 
municated many gifts to be distributed by her among 
the faithful, through the sacraments, public prayers, etc. 
Now, as we have seen, excommunication deprives us of all 
those benefits which our Lord has committed to her as the 
sole dispenser, namely of the benefits of the mixed and purely 
external communion, but not, at least per se, of those which 
are internal. 

3194. Having thus far spoken, in general, of the effects 
produced by the punishment under discussion, we now 
come to its particular consequences, both as regards the 
person under excommunication, and others. We shall 
briefly treat of each effect under a separate heading. 

I . Exclusion from the Sacraments. 

3195. The first effect is exclusion from the sacraments. 
An excommunicate, whether he be vitandus or simply tolera- 

1 Rom. xii. 5. 2 Ephes. iv. 15. 16. 



290 Excommunication. 

ins, cannot lawfully receive any of the sacraments of the 
Church except (a) in articulo mortis, when he can be ad 
mitted to the Sacraments of penance, the Blessed Eucharist, 
and Extreme Unction, 1 and (b) unless he is excused by 
invincible ignorance, the fear of death, of mutilation, loss of 
property, or of any other grave harm or evil, bodily or 
spiritual, and then apart from any contempt of the censure. 2 
The reason of this exclusion from the sacraments is plain. 
For evidently a person who has been expelled from the 
Church and the society of the faithful cannot be allowed to 
receive her greatest spiritual favors, to which her good and 
faithful children alone are entitled. Moreover, the very end 
and aim of the expulsion is to bring the person expelled 
back to a sense of duty, by withdrawing from him all his 
former ecclesiastical privileges, which attach to the mem 
bership of the Church. 3 

3196. We have said, whether he be " vitandus " or simply 
" toleratus ; " for the prohibition applies not only to those 
whose excommunication has been officially made public, and 
who must therefore be shunned by the faithful (denuntiati. 
vitandi),but also to the tolcrati. For the Const. Ad Vitanda 
of Pope Martin V. has made no change whatever in favor 
of the excommunicate himself. If a person who is under 
excommunication, out of the above cases of necessity, 
receives any of the sacraments, he commits indeed a mortal 
sin, nay, is guilty of sacrilege, but he does not incur any 
special ecclesiastical punishment. Yet, while the law of 
the Church has not laid down any specific punishment in 
the case, it is discretionary with the ecclesiastical judge 
or Superior to inflict such punishments in the case as 
he may deem proper. However, in the case of a person 
excommunicated who knowingly, i. e., who knows he is 
under excommunication and that the reception of orders is 

1 Pnel. S. Sulp., 1. c., n. 770. 2 Craiss., n. 6509. 

3 Kober, 1. c., p. 280. Kober, 1. c., y. 282. 



Excommunication. 291 

forbidden to excommunicates receives orders, the law 
expressly provides that he shall be forever deposed by the 
ecclesiastical Superior. l 

3197. From the fact that excommunicates are forbidden 
to receive, it follows as a logical and necessary consequence, 
that priests and other ministers of the Church are obliged to 
refuse to administer the sacraments to persons who are 
excommunicated, though only when the latter are vitandi. * 
For such administration would be a communicatio in divinis 
with such excommunicates as are to be shunned. A priest 
or other Ecclesiastic who nevertheless knowingly and wil 
fully, and therefore maliciously, administers the sacraments 
to them commits a mortal sin and, moreover, incurs at 
present, according to the Const. Apostolicce Sedis of Pius IX., 
excommunication reserved simpliciter to the Pope, if the 
excommunicates in the case are such as have by name been 
excommunicated by the Pope himself and publicly de 
nounced as such. 3 

3198. We say, by the Pope himself ; for, when an Ecclesiastic 
administers the sacraments to persons excommunicated by 
name and denounced as such by the Bishop or other lawful 
Superior, he incurs ipso facto only the interdict ab ingressu 
ecclesicz, as appears from the Const. Apostolica Sedis of Pope 
Pius IX., which reads: " Scienter celebrantes vel celebrari 
facientes divina in locis ab Ordinario, vel delegate judice, 
vel a jure interdictis, aut nominatim excommunicates ad 
divina officia, sen ecclesiastica sacramenta, vel ecclesiasticam 
sepulturam admittentes, interdictum ab ingressu ecclesias 
ipso jure incurrunt, donee ad arbitrium ejus, cujus senten- 
tiam comtempserunt, competenter satisfecerint." 4 

3199. We have said, though only when the latter are vitandi ; 
for at present it is allowed, as we have seen, to communicate 

1 Cap. 32 de sent, excom. (v. 39) ; Ib. Glossa , v. ordinibus. 

3 Cap. 18 de sent, excom. (v. 39). 3 Cf. supra, n. 3043. 

4 Const. Ap. Sedis 1869, Interd. lat. sent., res. ii. 



292 Excommunication. 

even /;/ divinis with those excommunicates who are tolerati. 
Hence ecclesiastics who administer the sacraments to 
tolerati do not incur the above or any other ecclesiastical 
punishment. However, it must not be imagined that on 
this account a priest is altogether free to administer the 
sacraments to tolerati. For the general rule that unworthy 
persons are not to be admitted to the sacraments must be 
applied also to the excommunicates in question. Besides, a 
priest who without cause admits such persons to the 
sacraments might easily confirm them in their obstinate and 
perverse conduct, and moreover cause great scandal among 
the faithful. There can be no doubt, therefore, that a 
priest who, wilfully and without a reasonable excuse, ad 
ministers the sacraments to tolerati, commits a mortal sin. 1 

2. Excommunicates cannot administer the Sacraments. 

3200. It is manifest that a person who is expelled from 
the bosom of the Church, and who is to be considered as a 
heathen and publican, cannot, with any propriety or 
decency, be allowed to dispense and administer her graces 
and means of salvation and her choicest gifts ; nor to be her 
representative and authorized agent in the performance of 
holy functions. " Hence a person, or rather a priest or 
other Ecclesiastic under excommunication, is strictly forbid 
den to administer the sacraments, or, to say Mass, or, in general, 
to perform any ecclesiastical or sacred function whatever. 3 
This is the general rule, which applies equally to the vitandi 
and the tolerati. 

3201. Like all rules, however, this one also has its excep 
tions. Here a distinction should be drawn between an 
excommunicate who is to be sJiunned, and one who need not be 
shunned. The former a vitandus can administer the sacra 
ments only (a) in case of extreme necessity, namely, to 

1 Kober, 1. c., pp. 285, 286. Ib., p. 290. 

3 Arg. cap. ult. de cler. exc. min. (v. 27) ; Kober, 1. c., p. 290. 



Excom m u n ica tion . 



293 



persons who are in articulo mortis, and who cannot receive 
the sacraments from another priest. But what sacraments 
can the vitandus administer to the dying person in the case ? 
It is admitted by canonists that he can administer Baptism 
and Penance, since these sacraments are of the greatest 
necessity. It is disputed whether he can confer the Sacra 
ments of the Eucharist and Extreme Unction. With 
Kober l we hold that he can also administer the Blessed 
Eucharist, or rather Viaticum, in the case. For, if the law 
of the Church allows a person who is in need to receive 
bread and other food from the hands of a vitandus, why 
should this same law make it unlawful for a dying person 
to receive the Bread of Heaven from such a person ? 2 It is 
generally conceded by canonists that the other sacraments 
namely, Confirmation, Extreme Unction, Holy Orders, 
and Matrimony, cannot be administered by the vitandus, 
even to a person in articulo mortis. For these sacraments 
are in no sense absolutely necessary to salvation. How 
ever, in regard to Extreme Unction and Matrimony Kober 3 
allows certain exceptions. 

3202. (U) Secondly, the vitandus is authorized to adminis 
ter the sacraments, (not only some, but all the sacraments) 
and also perform other sacred functions, whenever he is, so 
to say, compelled to do so, either by force (yi) or grave fear 
(metu gravi), v. g., when he is threatened with death, muti 
lation, or loss of his property, and also when, being an occult* 
excommunicate, he would, by omitting those actions, mani 
fest his crime and thus defame himself or incur other 
serious injury. 5 For the law of the Church does not 
bind under such grave disadvantages. 

3203. The toleratus, on the other hand, can administer the 
sacraments and perform ecclesiastical functions, not only in 

1 L. c., p. 296. 2 Cf. Schmalzg., 1. 5, t. 39, n. 146. 3 L. c., p. 267. 

4 The excommunication of a vitandus may be occult in some places. 

5 Supra n. 1716 sq. ; Kober, 1. c., p. 291. 



294 Excommunication. 

the above cases, in which a vitandus can, but also whenever 
he is asked expressly or tacitly by the faithful to do so. For, 
as was seen, the Const. Ad Vitanda of Pope Martin V. 
allows the faithful to communicate, not only in humanis but 
also in divinis, with a toleratus ; they have, consequently, 
speaking in general, a right to ask him for the sacraments ; 
and he, on his part, when thus asked, has a right to comply 
with the request. We say, when thus asked ; for of his own 
accord the toleratus cannot exercise any of the above func- 

J 

tions, since the Const. Ad Vitanda was enacted only in favor 
of the faithful, not of the excommunicate himself. 

3204. When, out of the above cases, an excommunicate, 
whether vitandus or toleratus, maliciously or intentionally, i.e. r 
knowingly and wilfully, administers sacraments, or says 
Mass, or performs any other act of the or do, he commits a 
mortal sin, and moreover incurs irregularity, l and that 
whether he be a vitandus or simply a toleratus. 2 

3205. It should be observed here that, except in the cases 
above given of necessity, etc., the sacraments conferred by 
a person excommunicated, even though he be a vitandus, 
are illicit indeed, but yet valid. The Sacrament of Penance 
alone is excepted, it being undoubtedly invalid, if adminis 
tered, out of the case of necessity, by an excommunicate 
who is to be shunned. The reason is, that, besides the 
power of the or do, the power of the jurisdiction is indispen 
sable to the valid administration of this sacrament. Now a 
vitandus is deprived by the Church of all ecclesiastical 
jurisdiction. This, however, does not apply to a toleratus, 
since the Church does not divest him of jurisdiction with 
regard to those who apply to him for the sacrament. 

3206. As the vitandi are, out of the cases given, absolute 
ly forbidden to administer the sacraments, so are the faith 
ful, on their part, strictly prohibited from applying for or 

1 Cf. supra, n. 3118 sq. 2 Kober, 1. c., p. 309. 



Excomniunication. 295 

receiving the sacraments from them, except in the cases 
above stated. And if they nevertheless do so, they commit 
a mortal sin, but, at present, do not incur any positive ca 
nonical punishment, the excommunication, which was form 
erly incurred for the communicatio in sacris, in the case, being" 
now abrogated. 

3207. Only the reception of orders constitutes an excep 
tion. For those who knowingly receive orders from a 
Bishop who is excommunicated, suspended, or interdicted 
as vitandus, incur at present ipso jure suspension from the 
orders thus received. This is expressly enacted in the 
Const. Apostolicce Sedis of Pope Pius IX., issued in 1869, 
which reads : " Suspensionem ab ordine suscepto ipso jure 
incurrunt, qui eundem ordinem recipere prassumpserint ab 
excommunicato, vel suspense, vel interdicto nominatim 
denuntiatis, aut ab hasretico, vel schismatico notorio ; eum 
vero qui bona fide a quopiam eorum est ordinatus, exer- 
citium non habere ordinis sic suscepti, donee dispensetur, 
declaramus." * 

3. Withdrawal of the " suffragia cede sice" , 

3208. Excommunicates, at least when they are vitandi, are 
excluded (a) from all share in the public prayers of the 
Church, recited by the faithful or the priest, in the name of 
the Church, (b) from the liturgical prayers said by the priest 
in the name of the Church, especially during the Sacrifice 
of the Mass, (c) and from all participation in the indulgences 
granted by the Church. 2 This privation is a great loss to 
the excommunicate. For in all the prayers which are found 
in the public liturgy, v. g., in the missal, breviary, etc., and 
which the priest recites not unfrequently, together with 
the faithful, during the Mass, or when saying the breviary, 
or in public processions, or other liturgical functions, the 

1 Susp. 6 a Const. Ap. Sedis ; Cf. Kober, 1. c., p. 315. 

2 Arg. Cap. 28, 38, de sent, excom. (v. 39). 



296 Excommunication. 

Church ever offers up supplications to God for the welfare 
of all her children. All the members of the Church partici 
pate in, and are benefited by these prayers. The excom 
municate alone is excluded from them. 1 For him alone 
the Church offers up no prayers. 

3209. We have said, at least when they arc " vitandi ; " for 
it is controverted whether the tolerati are also excluded 
from these prayers. Many canonists hold the negative. 
Kober 2 and other eminent canonists maintain the affirma 
tive, chiefly on the ground that the Const. Ad Vitanda did 
not make any change whatever in favor of the excommu 
nicate himself. We have said, secondly, public prayers ; for 
neither the tolerati nor the vitandi are deprived of the 
private prayers of the faithful or the priest. Hence, while 
the faithful can offer their private prayers for an excom 
municate, they are forbidden to include him or pray for 
him when they offer up the public prayers of the Church. 

4. Excommunicates cannot assist at the Mass or other 
Ecclesiastical Functions. 

3210. in the first place, an excommunicate, whether he 
be vitandus or tolcratus, is strictly forbidden to assist at the 
sacrifice of the Mass? Hence, if, notwithstanding this pro 
hibition, he assists at the Holy Sacrifice, he commits a 
mortal sin, unless he does so from ignorance, the necessity 
of avoiding scandal, or the loss of his good name, or from 
some other grave cause. We say, whether he be vitandus or 
ioleratus ; for to be present at the Holy Sacrifice is evi 
dently a communicatio in sacris with the priest celebrating 
and the people hearing the Mass. Now, not only the 
vitandi, but also the tolerati are forbidden to communicate 
in sacris with others. For the Const. Ad Vitanda made no 

1 Kober, 1. c., p. 241. * Ib., p. 267-272. ; Cf. Schmalzg., 1. 5, t. 30, n. 126. 

8 C. I, dist. 25 ; Cap. 43 de sent, excom. (v. 39). 



Excommunication. 297 

alteration whatever in the old legislation, in favor of the 
excommunicate himself. 1 As, on the one hand, the excom 
municate is not permitted to be present at the Holy Mass, 
so, on the other, are the priest and the faithful prohibited, 
the one from saying, the other from assisting at Mass, in his 
presence. 3 

3211. Q. What is to be done, therefore, if an excom 
municate is present, or assists at the Mass ? 

A. If he be a toleratus, the Mass should not be interrupted 
or intermitted. This follows from the principles already 
laid down. For, while the toleratus himself is forbidden to 
communicate in divinis with others, and therefore to assist 
at Mass, yet the celebrant in the case and the faithful are 
free to communicate thus Avith him, and consequently to 
celebrate, or assist at Mass, in his presence. 

3212. \{}\z\s3ivitandus, the celebrant, either personally 
or through another person, should call upon him, by name, 
to leave the church. If he refuses to obey, he should be 
ejected, and that even by force, if need be. If he cannot 
be put out without danger of greater evil or causing 
serious disturbance in the church, then (a) the others who 
are present must go out ; otherwise they commit sin ac 
cording to some, a mortal sin, according to others only a 
venial by associating or communicating in religious 
matters with a vitandus. (b) The priest should break off 
the Mass and leave the altar, in case he has not yet begun 
the " canon " of the Mass. If he has already commenced 
the canon, he should continue the Mass, though only with 
one server or altar-boy (all the others being obliged to 
leave as above stated), as far as the communion inclusive. 
After consuming the Sacred Blood, he should forthwith 
leave the altar and finish the prayers that follow after Com- 

1 Kober, 1. c. , p. 323 ; Schmalzg., 1. c, n. 130. 

2 Cap. 1 8 de sent, excom. in 6 (v. 11). 



298 Excommunication* 

numion in the sacristy or some other proper place, or omit 
them altogether. l 

o 

3213. If the celebrant does not observe this, but knowingly 
and wilfully celebrates Mass in the presence of a vitandus, 
he sins grievously, and, moreover, incurs at present, ipso 
facto, (a) the interdictum ab ingrcssu ecclesice, if the vitandus 
has been excommunicated and denounced as such by a 
Bishop or delegate judge ; z (ti) and ipso facto excommunica 
tion reserved simply to the Pope, if the vitandus in the case 
has been excommunicated by the Roman Pontiff. 3 

3214. Observation. The vitandus, in the case, not only sins 
mortally by assisting at Mass, but, moreover, according to 
the Sacred Canons, as contained in the Corpus Juris, incurs a 
new excommunication reserved to the Pope. 4 The same 
applies (a) to persons interdicted, when their interdict has 
been officially made public ; (b) and to all those who pre 
vent in any way the person excommunicated or interdicted 
from leaving the church. 5 We say, according to the Sacred 
Canons, etc. ; for the Const. Apostolicce Sedis issued by Pope 
Pius IX. in 1869 is silent regarding this excommunication. 
Hence it would seem to be abolished. 6 

3215. As the excommunicate is excluded from the hear 
ing of the Mass, so is he, moreover, forbidden to assist at the 
other divine services or functions of the Church officia 
divina. By divine services (officia divind) are meant the 
saying of the breviary in choir, public processions and 
prayers, the blessing of the Holy Oils, of water, of candles, 
*nd other ecclesiastical functions of a similar kind. 7 An 
Excommunicate, even though vitandus, can, however, assist 
at sermons* and enter the church, in order to pray privately, 

1 Clem. 2, de sent, excom. (v. 10) ; Cap. 16 de sent, excom. (v. 39) ; Kober, 
1. c. f p. 324. 

2 Const. Ap. Sedis of Pope Pius IX., n. 17; Cf. cap. 8 in 6 (v. 7). 

3 Const, Ap. Sedis Pii IX., Interdicta, n. 2. 4 Clem. Graves 2, (v. 10). 
5 Ib. 6 Cf. Craiss., n. 6525 ; Varc. p. 919. 

7 Kober, 1. c, p. 326. 8 Cap. 43 (v. 39). 



Excommun ication. 



299 



provided the above divine offices are not being celebrated 
at the time. Again, though he is not allowed to recite the 
office in choir, he is nevertheless bound to say it in private, 
or by himself. The faithful, on their part, are bound not to 
assist at any officia divina at which the vitandus should pre 
sume to be present. 

5. Disqualification for Appointment to Ecclesiastical Offices. 

3216. As even ordinary societies or associations would 
violate all rules of prudence, justice, and propriety, if they 
should appoint a person whom they had expelled from their 
membership for violation of their rules to any office or 
position in the society, so neither can so great and holy a 
society as the Church allow any one who has been excom 
municated or expelled from her pale to be appointed to any 
ecclesiastical office, position, or dignity. * If she did otherwise, 
she would openly contradict herself. For by excommunica 
tion she would, on the one hand, forbid the excommunicate 
to hold any intercourse, especially religious, with the rest 
of her members ; and on the other, by appointing such 
a one to an office, give him the fullest liberty to associate 
with them in religious and social matters. 

3217. Hence the law of the Church, as still in force, 
expressly provides that an excommunicate is absolutely 
incapable of being appointed to benefices or ecclesiastical offices 
of any kind. z And if he is, nevertheless, appointed to such 
offices, the appointment is ipso jure null and void. 3 This 
disqualification must be understood in the widest sense of the 
term, both as regards the benefices and offices, and the 
person excommunicated. Hence it extends, i. not only to 
excommunicates who are vitandi, but also to tolerati. For 
although at present, as we have seen, the faithful can 
communicate or associate with a toleratus, even in religious 

1 Kober, 1. c. p. 340. 2 Cap. Postulastir , 7 <v 27). 

3 Cap. I, de rescr. in 6 (i. 3) ; Kober, 1. c., p. 340. 



300 Excommunication. 

matters, yet the tolcratus himself must keep aloof from all 
association in religious matters with the faithful. Hence he 
cannot accept any appointment whatever. In fact, the 
appointment is evidently a favor to the appointee. Now, as 
was seen, the Const. Ad Vitanda, which is now the law on the 
matter under discussion, has made innovations only in favor 
of the faithful, but not of the excommunicate himself. Conse 
quently every excommunicate, whether he be vitandus or 
toleratus, notorious or occult, is absolutely disqualified for an 
ecclesiastical appointment. 

3218. 2. The disqualification applies, moreover, to all 
ecclesiastical appointments whatever, and, therefore, not merely 
to beneficia proper, which are conferred for life, whether 
majora or minora, whether curata or simplicia, whether 
scecularia or regularia, - but also to all ecclesiastical offices, 
positions, or dignities of whatever kind which are conferred 
but temporarily, i. e., without any fixity of tenure, in other 
words, whose incumbents are removable, such as adminis 
trators of dioceses, delegated judges, and removable 
pastors. * 

One of the reasons is that excommunicates are forbidden 
to exercise the functions of ecclesiastical offices, and conse 
quently they are excluded from the offices themselves, since 
the beneficium datur propter officium. 4 Hence the appoint 
ment in the United States of an excommunicate to a parish 
or other ecclesiastical office, though we have no benefices 
proper, is null and void. All Superiors having the power 
of appointment are strictly forbidden to attempt to appoint 
an excommunicate to any ecclesiastical office or position. 

3219. 3. The disqualification, however, does not comprise 
benefices or ecclesiastical offices to which the excommuni 
cate had already been appointed before he became excommunu 
cated. In other words, excommunication incapacitates a 

1 Kober, 1. c., p. 344. * Ib., p. 342. 3 Schmalzg., 1. c., n. 148. 

4 Cap. 15, de rescr. in 6 (i. 3). 



Excommunication, 301 

person to be appointed to an office or benefice, but does not 
^ deprive him, at least per sc, of the benefices and offices 
which he already possesses. The reason is, that the Church 
considers the state of a person under excommunication 
only as a temporary state and, therefore, does not wish to 
strip him ipso facto of his office or benefice. * 

3220. We say, at least "per se" ; for indirectly excommu 
nication may cause the privation of ecclesiastical offices, 
namely, where the excommunicate remains for a year or 
longer in the excommunication. For the law of the Church 
is that persons who are suspended, excommunicated, or 
interdicted shall, if they obstinately remain a year or longer 
in their censure, and do not seek to be released from it, be 
deprived of their offices or benefices. 2 

3221. Q. Does excommunication deprive the excommuni 
cate of the fndts or income (with us, salary of Rector, 
assistant, etc.), of his benefice or office ? 

A. We premise: We have already seen that, while 
excommunication suspends the excommunicate from his 
office, it does not deprive him of the office itself. We now 
answer : We must distinguish between benefices and 
offices legitimately and peacefully held by the excommuni 
cate, and those to which he was appointed while under ex 
communication. In the latter case, he has no right whatever 
to the income, since the appointment itself was absolutely 
null and void, as we have seen. 

3222. In regard to the f nuer case, namely, in regard to 
the offices and benefices to which the excommunicate had 
been lawfully appointed, prior to his falling under censure, 
we refer the reader to what we have said above, Nos. 1874, 
1875, where we fully discuss this whole matter, and show 
that the excommunicate forfeits his income, for the time 
being, except in case of extreme need, when he is entitled 

1 Kober, 1. c., p. 350. 2 Cap. 8, de sec. et qual. (i. 14) ; Can. 36, c. II, q. 3. 



302 Excommunication. 

to what is necessary to preserve his life. But while it is 
certain that excommunication deprives the excommunicate 
of his ecclesiastical income, l it is debated among canonists 
whether it does so ipsojurc, or only post sententiam judicis. 
Kober 2 and others maintain that the excommunicate is 
deprived of his income ipso jure, i. c., by the very fact of his 
having fallen under excommunication, and without any 
judicial sentence. Schmalzgruber 3 holds it as the truer 
opinion that he forfeits it only upon judicial sentence. 

6. Withdrawal of the " Communicatio Forensis" 

3223. The excommunicate is excluded from all judicial pro 
ceedings in ecclesiastical courts, and consequently from the 
functions of a judge, (with us, also members of Commissions 
of Investigation, where these bodies still exist), accuser or 
plaintiff, witness, notary, secretary, advocate, and procu 
rator or attorney. This exclusion or disqualification is 
expressly decreed by the Sacred Canons, as still in force, 
also with us, and is, moreover, simply the result or conse 
quence of the law of the Church, forbidding any intercourse 
whatever between the excommunicate and the faithful. 
For it is plain that in judicial proceedings the excommuni 
cate necessarily comes into direct contact with the faithful, 
namely, with the parties interested, such as the judge, the 
opposing party, the witness, etc. 5 Besides, the Church, by 
depriving the excommunicate of all standing in her courts, 
and of all his judicial rights and advantages, wishes to make 
him realize his utterly helpless condition, and thus to cause 
him to return sooner to the path of duty. 6 

3224. We say, in ecclesiastical courts ; for, although for 
merly the disqualification extended also to secular courts, 7 

i Cap. 53, de app. (ii. 28). 3 L. c., p. 351. 

3 L. c., n. 158. 4 Cap. 12, de except, (ii. 25). 

6 Kober, 1. c., p. 416. 6 Cap. I, de except, in 6 (ii. 12.) 

7 Kober, 1. c., p. 417. 



Excommunication. 303 

yet, at the present day, it is confined to ecclesiastical 
courts. The reason is, that, at present, by general usage, 
association or communication between the excommunicate, 
even though vitandus, and the faithful, is allowed in secular 
or worldly matters. 

3225. What has been said of the exclusion of the excom 
municate from all share or participation in ecclesiastical 
juridical proceedings, applies, in its rigorous sense, only to 
the " vitandi ;" that is, they alone are to be excluded ex 
officio and absolutely from these proceedings, and that 
whether the faithful, or the parties interested, demand it or 
not. The ecclesiastical judge is bound ex officio to repel 
them, even though he is not asked to do so. 1 But as 
regards the tolerati, it must be borne in mind, as we have 
repeatedlv noted, that the faithful may keep up their inter 
course with them in all matters, religious or civil, and 
therefore also in juridical proceedings. Hence the toleratus 
may, unless the faithful object, fulfil the office of judge, 
accuser, witness, notary, advocate, and procurator. 

3226. We say, unless the faithful object ; for, as we have 
seen, it is optional with them to associate with the 
toleratus, or not. They are at perfect liberty to object 
to his acting or being admitted either as a judge, or 
in any other capacity. Nay, they can make this objec 
tion at any time during the judicial proceedings. 2 And 
if the objection is proved, that is, as soon as the per 
son objecting has shown that the person objected to is 
really under excommunication, the latter must be forthwith 
set aside. However, as it not unfrequently happened in 
ecclesiastical causes that the exception or objection of 
excommunication was made maliciously and solely for the 
purpose of causing delay, the Sacred Canons, as still in force, 
enact that the person who objects to another on the score 

1 Kober,!. c., p. 418. 3 Cap. 12 de except. (ii. 25). 



304 Excommunication. 

of excommunication must prove, within eight days, that his 
assertion is true, namely, that the person objected to is 
really under excommunication. Otherwise, the ecclesiasti 
cal judge should proceed with the case and condemn the 
person objecting to the expenses as taxed by the court, 
incurred by the person objected to. * 

3227. While, however, an excommunicate cannot act as 
accuser or plaintiff before an ecclesiastical tribunal, yet he 
is obliged, if cited, to appear before it as defendant or 
accused in actions brought against him. Otherwise, as is 
plain, he would be able to elude justice, escape punishment, 
and thus be benefited instead of injured by his excommuni 
cation. As such defendant or accused he retains the/?/// 
right and liberty of defending himself, just as though he 
were not excommunicated. - For the right of self-defense is 
a right guaranteed by the very law of nature, and therefore 
cannot be taken away by the law of the Church. In fact, 
the Sacred Craions expressly guarantee to the excommuni 
cate the full right of defending himself. Finally, such an 
excommunicate, when cited as an accused or defendant, can 
appear and defend himself either personally or through 
counsel. * 

7. Loss of the Rights of Jurisdiction. 

3228. It is certain that an excommunicate is deprived of 
ecclesiastical jurisdiction, in such a manner that he cannot 
licitly exercise any act of jurisdiction, whether voluntary or 
contentious, whether of the internal or external forum. & 
The reason is, that it would be very unbecoming that a per 
son expelled from the Church should nevertheless exercise 
jurisdiction over the other members of the Church. 

1 Cap. i de except, in 6" (ii. 12) ; Cf. Cap. 21, 2, cle off. del. (i. 29). 

2 Kober, 1. c., p. 422. 3 Cap. 5 de except, (ii. 25). 
4 Stremler, 1. c., p. 274. 

fi Ar 2 C np. 2 . ii 27^ ; Cap. i in 6 (i. 13^ ; Cap. 10 in 6 (i. 14). 



Excommunication. 305 

3229. Again, ordinary jurisdiction is always annexed to 
and therefore lost or suspended with an ecclesiastical office. 
Now excommunication always includes suspension ab officio 
and therefore also the prohibition to exercise ecclesiastical 
jurisdiction. Besides, excommunication, as we have seen, 
forbids all intercourse between the excommunicate and the 
faithful. Now the exercise of jurisdiction by an excommu 
nicate would certainly be a direct intercourse and communi 
cation between the former and the latter. J What we have 
said thus far holds not only of excommunicates who are 
to be shunned (ritandi) but also of the tolerati. For the 
latter commit a mortal sin by exercising any act of 
jurisdiction unless they are requested to do so by the 
faithful. 

3230. We have said that the excommunicate cannot licitly 
exercise jurisdiction. The question now arises whether he 
can do so vahdly. Here we must distinguish between the 
vitandi and the tolerati. All canonists agree that a vitandus 
is completely divested for the time being of all ecclesiastical 
jurisdiction, whether of the internal or external forum, 
whether ordinary or delegated, contentious or voluntary, 
and that, consequently, all acts whatever of jurisdiction 
performed by him, while he is under excommunication, are 
null and void, and not merely illicit. z 

3231. Hence such an excommunicate cannot validly (a] 
make any appointment whatever to an ecclesiastical office 
or benifice ; (b) act as judge or pass judicial sentence ; (c) 
hear confessions, except in case of extreme necessity ; (a) 
give faculties to administer the sacraments ; (e) act as elector 
or be elected or appointed to an ecclesiastical office. This, 
however, does not apply to the election of the Pope. For 
the law of the Church, as still in force, in order to cut off 
all occasion of schism, ordains that excommunication does 

1 Kober, 1. c , p. 361. 2 Schmalzg., 1. c. ; n. 164. 



56 Excommunication. 

not disqualify any one from the right of electing or being 
elected the Sovereign Pontiff. l 

3232. Note that all acts whatever of jurisdiction, whether 
voluntary or contentious, performed by a vitandus are ipso 

facto null and void. Hence a person upon whom, for 
example, an ecclesiastical Superior Bishop or Archbishop 

who is vitandus, pronounces sentence, and inflicts, v. g., 

suspension or some other punishment, need not, nay should 
not obey or. comply with the sentence. 2 . 

3233. With the tolerati, the case is different. They are 
indeed forbidden, of their own accord and without being 
requested, tacitly or expressly, to have any intercourse with the 
faithful, as we have seen, and hence cannot validly exercise 
any jurisdiction, whenever they are objected to by the faithful. 
But when no objection is made to them by the faithful, then 
the law of the Church takes it for granted that they are 
requested, at least tacitly, to exercise jurisdiction. Hence 
the tolerati, even when it is publicly known that they are 
under excommunication, can validly exercise ecclesiastical 
jurisdiction, as long as no objection is made to them by the 
faithful or the parties interested, on account of the 
excommunication. 

3234. We say, as long as no objection is made to them ; for, 
as we have seen, the faithful or the parties interested are 
at liberty to object at any time to the tolcratus, on the score 
of his excommunication. They are free to accept his acts 
of jurisdiction in any matter they please, v.g., in matters when 
they are benefited, such as appointments to office ; or to 
reject them in affairs which are disadvantageous to them, 
such as criminal proceedings against them. It is plain, 
therefore, that, if the faithful or the parties interested object 
to the toleratus, because of his excommunication, the latter 
becotnes forthwith, i.e., as soon as the exception Jias been proved 

J Clem., C. 2, 4, de elect, (i. 3) ; Kober. 1. c., p. 371. * Can. 4, c. 24, q. I. 



Excommunication. 307 

incompetent to validly exercise any jurisdiction, and all acts of 
jurisdiction exercised by him, once he has been objected to, are 
invalid. 1 However, the objection, or as it is technically 
termed, exceptio ex communications, must be not merely made 
but also clearly and fully proved,, and that, as we have seen, 
within eight days. 2 

3235. This legislation of the Church, by which the tolerati 
are not absolutely deprived of jurisdiction, is right and 
proper. For the good of the faithful and the tranquillity of 
their conscience require that they shall not be subject to 
constant doubts as to the validity of the jurisdictional acts 
of their Superiors. Now it is evident that, if the acts of 
jurisdiction of a toleratus were eo ipso invalid, continual per 
plexities would arise as to the validity of the acts of each 
and every Superior. 3 

8. Refusal of Christian Burial. 

3236. Excommunicates who are vitandi, 4 and who die 
while under excommunication, without any sign of contrition 
and without having received absolution, are excluded from 
the honor and benefit of a CJiristian burial ; 5 in other words, 
their bodies must be buried in unconsecrated ground, and 
without any of the obsequies, rites, prayers, or solemnities 
with which the Church honors her faithful children who 
have died in the Lord. For the scpultura ecclesiastica, of 
which a vitandus is deprived, means three things : (a) to be 
buried in consecrated ground ; (8) with the ecclesiastical 
rites, prayers, and ceremonies, usually performed at funerals 
in the church or at the grave ; (c) the subsequent solemnities, 
such as the requiem of the month s mind. 6 

3237. In fact, it seems eminently proper and fitting, nay 

1 Cap. 12, de except, (ii. 25) ; Schmalzg., I.e., n. 1661. 

2 Cap. Pia, de except, in 6 (ii. 12). 3 Kober, I.e., p. 365. 

4 Ib., p. 337 ; Schmalzg., l,c., n. 127. 5 Cap. 12, de sepult. (iii. 28). 

6 Kober, I.e., p. 331. 



308 Excommunication. 

necessary to the maintenance of ecclesiastical discipline and 
order, that the Church shall not allow those who have been 
obstinately rebellious, and die thus, to be buried alongside 
of her true and obedient children, and be accorded those 
obsequies and funeral honors which she justly reserves for 
those who are in her communion. Moreover, both the 
sacred ministers of the Church and the faithful would evi 
dently become guilty of communicatio insacris with an excom 
municate vitandus, by performing the customary funeral 
rites of the Church, in the case, or assisting at them. 

3238. Hence, also, all those who knowingly assist at the 
funeral of a vitandus and accompany the remains to the 
grave are guilt} 7 of forbidden intercourse with an excom 
municate and commit sin. For intercourse with a vitandus 
is forbidden, not only when he is alive, but also when dead, 
until he has been absolved. 

3239. Moreover, those who knowingly and wilfully and 
with contempt for the law of the Church, either by force, or 
threats, or other unlawful means, procure ecclesiastical 
burial for a vitandus, incur ipso facto, also at present, major 
excommunication. Thus the Const. Apostoliccs Scdis of Pope 
Pius IX., decrees : " Excommunicationi lataa sententiae 
nemini reservatae subjacere declaramus, mandantes seu 
cogentes tradi ecclesiasticas sepulturae hasreticos notorios 
aut nomination ex communicates vel interdictos." Further 
more, those who knowingly permit (v.g., parish priests or 
others in charge of Catholic cemeteries) the burial of a 
vitandus, incur at present, according to the Const. Apostoliccz 
Scdis of Pius IX., 2 ipso facto, the inter dictum ab ingrcssu 
ecclcsice, and remain under it, until they shall have made 
condign satisfaction to the Superior whose sentence they 
have contemned by their action. 3 

3240. Nay, the Church goes farther and enacts that, where 

; Ko1>er, I.e., p. 331. * Interdicta, ii. 3 Cf. Kober, I.e., p. 335. 



Ex com m u n ica tion. 



309 



a vitandus has been buried in a Catholic cemetery, either by 
accident, error, or force, his body is to be exhumed and to 
be buried elsewhere, in unconsecrated ground, provided his 
grave can be distinguished from the graves of others. If it 
cannot be so distinguished the remains should not be ex- 
humed, lest otherwise, by mistake, the body of a person not 
excommunicated be taken for that of a vitandus and ex 
humed in his stead. 1 But in both cases, the cemetery must 
be considered as polluted, and no burials can take place in it 
until it has been formally reconciled or consecrated anew. 2 

3241. This legislation may seem altogether too harsh to 
an age of mistaken sentimentalism like the present. But it 
is none the less founded on the justest reasons of propriety 
and discipline. For the Church owes it to those of her 
faithful children who lie buried in consecrated ground to 
watch over the sanctity of their last resting place, where 
they sleep till awakened by the mighty trumpet sound of 
the resurrection. 

3242. With the tolerati the Church deals in a milder man 
ner. As the faithful can, if they choose, associate with a 
tolcratus, the Church does not deny them Christian burial. 3 
If, however, a toleratus who is known to be an excommuni 
cate dies without any signs of repentance, he may be de^ 
prived of Christian burial as a notorious, or public sinner.* 

9. Exclusion from the Company or Society of the Faithful, 

in purely human affairs ; that is, in the ordinary social 

Relations of Every -day Life. 

I. Former Discipline of the Church. 

3243. Thus far we have seen that the excommunicate is 
excluded from the companionship of the faithful in religious 
matters. In other words, he is forbidden to receive or 

1 Cap. 12, de sep. (iii. 28); Clem. Eos i, (iii. 7). * Cap. 7 de cons. eccl. (iii. 40). 
3 Kober, I.e., p. 337. 4 Prael. S. Sulp., t. iii., p. 269. 



3 l Excommunication. 

administer the sacraments; to assist at Mass and other 
divine functions and services of the Church, etc. The 
faithful, 1 on their part, are strictly bound to have no inter 
course whatever with a vitandus in these religious matters, 
that is, they are forbidden to receive the sacraments from 
him, or to administer (if they be Ecclesiastics) them to him ; 
to abstain from offering up the public prayers of the Church 
for him ; to assist at the holy Mass or other divine functions 
with him ; to appoint him to any ecclesiastical office, or to 
allow him to perform any function whatever of such office ; 
to recognize him as an ecclesiastical judge; to allow or 
engage him to act as advocate, accuser, witness, or procu 
rator or secretary before ecclesiastical courts ; to submit to 
acts of jurisdiction performed by him ; or to attend his 
funeral. 

3244. But the Church goes still farther. In order to 
inspire the excommunicate with salutary feelings of repent 
ance, and also to preserve the faithful from contagion by 
contact with him, the Church strictly commands the faith 
ful to shun and avoid him or his society and company, even 
in the ordinary social and civil relations and intercourse of daily 
life. 

3245. The end and aim of the Church in inflicting excom 
munication is to bring the refractory and obstinate offender 
back to repentance. Now it is plain that nothing is a more 
potent incentive for the sinner to return to obedience than 
the fact that he is, so to say, an outlaw from society, and 
that he is completely isolated and cut off from all association 
and external intercourse with others, even in purely human 
affairs, namely, in the social or civil relations of every-day 
life. The faithful are obliged, so to say, to completely 
disown him and withdraw from his company, as though he 

1 By faithful we here mean not only the laity, but also Ecclesiastics of whatever 
degree. 

3 Can. Excommunicates 17, c. II, q. 3 ; Can. 16, 18, 19 eod. 



Excommunication. 

were afflicted with a contagious disease, and unworthy to 
be in the company of his fellowmen. l Moreover, the 
Church wishes to deter others from following the bad 
example of the excommunicate, by placing before their eyes 
the gravity of the punishment. Now, nothing could 
be better calculated to convince the faithful of the dread 
character of excommunication than the complete isolation 
of the excommunicate. 2 

3246. The obligation in question, incumbent on the faith 
ful, of shunning the excommunicate in hunianis, i.e., of 
cutting off all social intercourse with him, dates back to the 
very time of the Apostles. 3 Numerous Councils inculcate 
and confirm this obligation. During the middle ages this 
exclusion of the excommunicate from all external social 
intercourse with the faithful was very vigorously enforced. 
Not only the faithful in general were strictly obliged to cut 
off all social and civil intercourse with the excommunicate, 
but also those who, owing to their state of life, v.g., married 
people, children, servants, inferiors of every kind, could 
scarcely, even with the utmost good will, break off all 
intercourse with him. 4 

3247. This rigor was mitigated by Pope Gregory VII. 
(1073-1085), in a Council held at Rome, in 1078. In this 
Council it was enacted that the wives and children of 
excommunicates, their servants and employees, and all those 
who were in any way subject to them, should have the right 
to associate fully and freely with them in the relations of 
every-day life, i. e., in all domestic, civil, and political 
matters. 

2. Present Discipline. 

3248. The rigor of the old law on this head was still 
further modified, as we have already explained, by the 

1 Stremlsr, p. 276. 2 Kober, 1. c., p. 379. 

3 Cf. I. Cor. v. ii. 4 Kober, 1. c., p. 387. 



312 Excommunication. 

Const. Ad Vitanda of Pope Martin V. (1417-1431). For, 
prior to this Pope, the faithful were forbidden from having 
any intercourse in social matters with any excommunicate 
whatever, even though not denuntiatus. The Const. Ad 
Vitanda, as generally interpreted, restricted this prohibition 
to those who were excommunicated by name and pub 
lished as such. These alone are called vitandi. By the 
letter of the law, therefore, as in force at present, the 
faithful, (excepting wives, children, etc., as stated above), 
are obliged to shun a vitandus in a social point of view. 

3249. We say by the letter of the law ; for, by general 
custom to the contrary, the law seems at present almost ev- 
ery-where obsolete, so that now the faithful do not seem to 
be obliged to break off social intercourse with vitandi, 
except in so far as the law of nature itself commands it, 
namely, by reason of scandal, or danger to faith and morals. * 
Hence, even though it be said that the positive ecclesiasti 
cal law on this head no longer obtains, yet the natural and 
divine law, which commands us to cut off all occasions of 
sin, and therefore also to shun sinners and excommunicates 
if their society endangers our faith and morals or gives 
scandal, still holds. 

3. In what Social Matters are the Fait l /ij id obliged to Shun a 

" Vitandus." 

3250. /;/ what particular social or civil matters is it necessary 
for the faithful to sJiiin tJic company of a vitandus ? Thus far 
we have stated, in general, that a vitandus must be shunned 
in social intercourse. Now we shall descend to the various 
particular cases or social actions in which, according 
to the letter of the law, intercourse must be broken off 
between the vitandus and the faithful. Canonists, follow 
ing the Glossa, 2 generally sum up these cases or social 

1 Pra;l. S. Sulp., t. iii., p. 273, n. 772. 

2 In Cap. 3 de sent, ex com. in 6- (v. II), v. a/its. 



Ex coin m 21 n ica tion . 313 

actions in the following verse : " Si pro delictis anathema 
quis efficiatur, os, orare, vale, communio, mensa negatur." 
Let us explain each of these words. 

3251. First, by the word os, is meant all speaking to or 
conversing with persons, whether it be done publicly or pri 
vately, by word of mouth or in writing, by signs or words. 
Second, the word orare refers to pr irate prayers. The faithful 
are bound to shun the company of the vitandus, not only 
when they offer up the public prayers of the Church, or 
assist at other public ecclesiastical functions, but also when 
they pray privately. Third, by vale is meant all external 
marks of respect, or friendship, or benevolence, such as saluting, 
rising, etc., and that whether given privately or in public. 
Fourth, the word communio means every kind of daily, civil 
intercourse, all association in business matters, the making of 
contracts, the entering into partnership, and the like. Finally, 
by mensa is understood the eating with a vitandus and living 
with him in the same house, and therefore also the inviting or 
accepting an invitation to dinner, 2 etc. 

3252. In all these relations of every-day life the faithful 
must shun the vitandus, at least, as was seen, in so far as the 
law of God and of nature commands us to shun and avoid 
public sinners. However, as was observed, the law of the 
Church has been greatly modified in this matter. Thus, at 
present, while, by this law, the faithful still commit sin if 
they keep up forbidden intercourse with a vitandus, yet 
they incur no ecclesiastical penalty, save as stated above 
under No. 3171. It must be observed also that the obliga 
tion of breaking off social intercourse is mutual ; that is, the 
faithful are bound to avoid the company of the vitandus, 
and the latter, on his part, is strictly forbidden to intrude 
himself into the society or companionship of the former. 4 

* Kober, 1. c., p. 385. 2 Ib., p. 385 ; Stremler, p. 281. 

3 Cap. 5, de cleric, excom. min. (v. 27). 4 Kober, I.e., p. 386. 



3 1 4 Ex com m u n ication. 

4. When is Social Intercourse alloived with a " Vitandus ? " 

3253. However, this prohibition of having any external 
social intercourse, though strict, is nevertheless not so 
rigorous as not to admit of any exceptions. We therefore 
ask : Is it allowed sometimes, even according to the letter of 
the law, for the faithful to associate with a vitandus in social 
matters? We say in our question, in social matters; for it is 
never allowed in divinis, i. e., in religious matters, save out of 
grave fear, etc., as explained above, * and even then, apart 
from all contempt of the law of the Church or God. We 
now answer : canonists, following the Glossa, z usually sum 
up the various cases where the intercourse in question is al 
lowed in the following verse " Utile, lex, humile, res ignorata, 
necesse. Hsec quinque solvunt anathema, ne possit obesse." 
We shall say a few words on each of these cases. 

3254. i. Utile means the utility, both spiritual and temporal, 
whether of the er communicate or of the faithful. Thus it is 
allowed to speak or write to ihtvitandus for the purpose of con 
verting him. 3 It is also permitted to give him alms or other 
wise assist him if he is in great need, 4 lest by too great severi 
ty he might be driven to despair or become more hardened in 
sin. In a word, the faithful should not treat him as an enemy, 
but rather as an erring brother, and hence they should try, 
in a spirit of Christian charity, to bring him back to a sense 
of duty. For after all, the great end and aim of ex 
communication is to cause the offender to amend. 5 In like 
manner can the faithful associate with the excommunicate 
whenever it is to their temporal or spiritual advantage 
to do so. 

3255. 2. Lex, by which is understood the law or state of 

1 Supra, n.i7oo 1719. 

2 Ad Cap. 15 de sent, excom. (v. 39), v. Excommunicationis. 

8 Cap. 54, (v. 39). 4 Can. 103, c. II, q. 3. 6 Kober, 1. c., p. 390. 



Excommunication. 315 

marriage lex matrimonii. This concession was first made, 
as was seen above, under No. 1947, by Pope Gregory VII. 
Accordingly the wife may continue her conjugal relations 
with her excommunicated husband, not only so far as 
concerns the dcbitum, but also all other domestic rela 
tions. l 

3256. 3. Humile means the subjection or obedience to 
and dependence upon the excommunicate. Hence, as was 
seen, according to the concession made by Gregory VII., 
children can associate freely in domestic and social matters 
of every-day life with their excommunicated parents ; pupils 
and wards with their excommunicated teachers and guar 
dians ; servants and employees with their masters and em 
ployers ; inferiors with their superiors ; subjects with their 
sovereign or ruler. For the excommunication does not 
directly and/^r se deprive the excommunicate of vested and 
properly acquired rights and privileges. Hence it does not 
divest him of his paternal authority or of his civil power as 
a ruler, and consequently does not exempt subjects from the 
obedience due superiors. * 

3257. We say, subjects with their ruler or sovereign ; for, as 
in the case of parents and masters, excommunication did 
not divest them of their natural and vested rights, so neither 
does it deprive the ruler of his vested rights as sovereign. 
He retains, even though he is a vitandns, all \i\s political rights, 
or all his rights as a sovereign. His subjects are bound to 
continue to obey him, pay their taxes, and fulfil all their 
other duties as subjects. It is true that, in the middle ages, 
excommunicated monarchs were sometimes deposed by the 
Pope, and their subjects freed from their oath of allegiance. 
But this was owing, not directly to excommunication, but 
rather to the political position of supreme arbiter between princes 
and people which the Popes occupied in those days, by virtue 

1 Schmalzg., 1. c., p. 184. * Kober, 1. c., p. 393. 



1 1 6 Excomm n n ica (ion. 

j 

of the jus publicum then in force. 1 Of course, this inter 
course is not allowed in religions matters. 

^258. 4. Res ignorata, by which is meant ignorance, 
whether of law (juris) or of fact (facti). Hence persons do 
not commit sin, qui ignorantcr excommunicatis communicant? 
i.e., who are inculpably unaware of the law forbidding them 
to hold intercourse with a vitandns (ignorantia juris), or of 
the fact that the party with whom they associate are really 
vitandi (ignorantia facti ). 2 

^259. 5. Finally necessity, by which is meant all cases of 
necessity, spiritual or temporal. Though it follows, as a 
matter of course, that cases of necessity must be excepted 
from the general rule, yet the Church, for the more com. 
plete tranquillity of the consciences of the faithful, has 
expressly enacted that it is allowed to associate in social or 
civil matters (in hnmanis) with a liiandus, whenever there is 
a nccessi.y, 3 temporal or spiritual, for so doing, whether on the 
part of the faithful or of the excommunicate himself. Thus 
the faithful can keep up the social, every-clay life intercourse 
with an excommunicate, whenever they need his assistance 
or good advice, or if they would otherwise incur a con 
siderable loss. 4 Any of these causes or reasons, taken 
separately, suffices to enable the faithful to have social 
intercourse with a vilandns. And as a matter of course, it 
follows that the vitamins can, in these cases, also communi 
cate with them. 5 

3260. All these reasons militate with much greater force 
at the present day. For there is no longer, at least practically 

1 Supra, vol. i.. n. 483; Kober, p. 403. 

2 Can. 103. c. II, q. 3; Schmalzg., 1. c., n. 190. 

3 Can. 103. c. 11, q. 3. This canon gives the decree of Pope Gregory VII. , by 
which the rigor of the old law was mitigated. 

4 Can. 1 10, c. n, q. 3. This canon gives the decree of Pope Urban II., which 
sets fbrt i the nbo^e mitigations. 

* Pc rr . 1. t. 7. n- i?o. 



Excommunication. 3 1 7 

speaking, any Catholic civil government ; there is no public 
opinion in favor of observing this social ostracism. Hence 
modern canonists, as was seen, hold that the canonical law 
forbidding association with vitandi, in social or worldly 
affairs, is now generally obsolete ; that the faithful are 
bound to shun such excommunicates only in as far as the 
law of nature and the necessity of avoiding scandal or 
moral contagion command it. 



ART V. 

What are the Excommunications inflicted by the Common Law of 
the Church and incurred " ip so facto " at the present day ? 

3261. Hitherto we have spoken of excommunications in 
general. We now come to each one in particular. Space 
does not permit us to set forth the peculiar nature and 
characteristics of each one. We must content ourselves 
with merely giving a list of those which are still in existence. 
Of course, we here speak merely of those which are enacted 
by the general law of the Church, since it would evidently 
be impossible to give those which are contained in the 
statutes of dioceses, or are inflicted ab homine per scntentiam 
particularem. 

i . The Const. Apostolicce Sedis of Pope Pius IX. 

3262. Formerly there were a great many excommunica 
tions, suspensions, and interdicts of the kind under discussion. 
Of these, some were reserved, either by the Bull In Ccena 
Domini, so called because, down to the year 1770, it was 
annually published on Holy Thursday (in coena domini) or 
by other Pontifical Constitutions, to the Pope ; others to 
Bishops ; some to nobody. The Const. Apostolicce Sedis of 
Pope Pius IX. of happy memory gave a new list of these 
correctional punishments and suppressed all that are not 



3 1 8 Excommunication. 

contained in this list, so that at present only those censures 
a jure and laics sent entice are in force, which are given in the 
Const. Apostolicce Sedis. It is therefore of the greatest prac 
tical importance that we should here briefly consider the 
nature, scope, etc., of this celebrated Papal document. 

2. Scope and general Outline of the Constitution. 

3263. We observe, in the interpretation of a law the scope or 
mind of the lawgiver must always be examined and borne in 
mind. Now, in issuing the Const. Apostolicce Scdis, it was 
the intention of Pope Pius IX., as is expressly stated in this 
Constitution, (a) to reduce to as small a number as possible 
the correctional punishments namely excommunications, 
suspensions and interdicts (inflicted latce sent entice and 
incurred ipso jure], which had been made from time to 
time by former Pontiffs and Councils and had gradually 
become very numerous ; (b) to modify and adapt those that 
were to be retained to tJic wants of our time. For, many of 
them had been enacted under conditions and in circum 
stances which had become totally changed. Consequently 
they had become inopportune, and had come to give rise to 
numerous doubts, perplexities, and scruples of conscience, 
both in confessors and in penitents. 

3264. For this purpose, Pope Pius IX. ordered that a full 
and most careful revision of all the correctional punishments 
latce sentcntice which were then in existence should be made 
and laid before him, so that he might, upon due deliberation, 
determine which ones were to be retained, which suppressed, 
and which modified to suit the exigencies of the present day. 
When the revision had been submitted to him, he, with the 
advice of the Sacred Congregation of the Holy Office, and 
after mature deliberation, issued on the I2th of October, 
1 869, the celebrated Constitutio Apostolicce Sedis, determining 
the number of correctional punishments latce sent entice to be 
in force in future, giving an accurate and complete list of 



Excommunication . 319 

them, and decreeing at the same time that only those were 
to be observed in future which were enumerated in said 
Constitution. 

3265. The words of the preamble of the Const, are : 
" Decernimus, ut ex quibuscumque censuris sive excom- 
municationis, sive suspensionis, sive interdicti, quas per 
modum latas sentential, ipsoque facto incurrendse hactenus 
impositse sunt, nonnisi illce, quas in Jiac ipsa Constitutione 
inserimus, eoque modo, quo inserimus, robur cxinde Jiabeant" 
Hence, as we have already noted, all excommunications, 
suspensions, and interdicts latce sent entice which are not 
given in the Const. Apostolicce Sedis are now abrogated. 
Consequently the Bull hi Ccena Domini is no longer in force, 
but has been superseded by the Const. Apostolicce Sedis. 1 

3. Reform PunisJiments decreed by the Council of Trent and 
retained in this Constitution. 

3266. However, after giving a specific list of the censures 
to remain in force, the Const. Apostolicce Sedis also enacts : 
" Praster hos hactenus recensitos (casus excommunicationis) 
eos quoque, quos sacrosanctum Concilium Tridentinum 
excommunicavit, nos pariter excommunicatos esse declara- 
mus." * As to suspensions and interdicts, this Const, enacts : 
" Denique quoscumque alios sacrosanctum Concilium Tri 
dentinum suspenses aut interdictos ipso jure esse decrevit, 
nos pari modo supensioni vel interdicto eosdem obnoxios esse 
volumus et declaramus." : Here Pope Pius IX. expressly 
decrees that, besides the censures which are specifically 
given in the Const. Apostolicce Sedis, those also which were 
made by the Council of Trent shall be in force. 

3267. Now the Council of Trent enacts reform punish 
ments in two ways, namely directly and indirectly. Those 
were enacted directly by it, which (a) either did not exist 

1 Cf. Craiss., n. 1633, note i. 2 Our Elements, vol. i., p. 439. 

3 Ib. p. 440. 



320 Excommunication. 

prior to said Council, but were made first or originally by 
it, and consequently were not merely renewed by, but had 
their origin in the Council of Trent ; (b) or if they did exist 
previously and were renewed, their renewal or confirmation 
took place in such a manner, as if they had been originally 
made by the Council. Those, on the other hand, were made 
indirectly by it, which existed at the time of the Council, 
v.g., in the corpus juris, and were merely reaffirmed or 
confirmed by it. 

3268. Owing to this, the question is mooted by canonists,, 
whether the Const. Apostolica Scdis decrees that not only 
those correctional punishments shall remain in force which 
the Council of Trent enacted directly or originally, but also 
those which it merely reaffirmed. The more common and 
probable opinion is, that those only are retained which 
were enacted directly and originally by the Council. For 
Pope Pius IX. distinctly says in the above Constitutio that 
those whom the Tridentine Council excommunicates 
cxcommitnicavit or decrees suspended or interdicted 
suspenses aut interdictos dccrcvit he likewise declares excom 
municated, suspended, or interdicted. These phrases can 
evidently be applied only to punishments which are not 
merely renewed, but first made by the Council. * 

3269. The question, therefore, naturally presents itself : 
how are we to know which correctional punishments were 
directly inflicted by the Council of Trent, which indirectly f 
Canonists generally lay down the rule that the Council 
enacts them indirectly, i.e., merely renews old censures, 
when it says, v. g., " et qui secus fecerint . . . pcenas a jure 
inflictas ipso facto incurrant ; " 2 or " antiquorum canonum 
pcenas super his innovando ; "* or when it mentions by name 
the particular old enactment which it renews, v.g., " juxta 
Constitutionem dementis V., etc." Where the Council does 

1 Soglia-Vecch., vol. ii., p. 353. 2 Cone. Trid., sess. xi., can. I de Ref. 

3 lb., cap. 22 de Ref. 



Excommunication. 321 

not use these or similar phrases, it imposes the punishments 
in question directly or originally ; in other words, really 
makes, not merely renews them. 

3270. Q. What are the excommunications latcs sententia 
directly enacted by the Council of Trent, and therefore 
still in force ? 

A. Before answering, we observe that even of those 
medicinal punishments which were enacted directly by 
the Council of Trent, only those remain in force, which 
had not fallen into disuse when the Const. Apostolicce Sedis 
was issued. Hence, where a punishment, enacted directly 
by the Council of Trent, is no longer in force, either in 
general, or in a particular locality, the Const. Apostolica 
Scdis does not retain or revive it. 2 

3271. We now answer : There are nine excommunications. 
For the following persons incur excommunication ipso facto, 
reserved to no one: 3 i. Those who publish, or cause to 
be published, books treating de rebus sacris i.e., Sacred 
Scriptures and annotations thereon, but not other books, 
even though they treat of sacred things, in the strict sense 
of the term, without the permission of the Ordinary. * 
2. Abducers of women, and their associates. 5 3. Those 
who compel a woman to enter a religious order, or hinder 
her from doing so. 6 4. Those who violate the liberty of 
contracting marriage. 7 5. Secular magistrates who refuse 
to assist Bishops in preserving or restoring the enclosure 
of nuns. 8 6. Those who usurp ecclesiastical property 
or goods. 9 7. Those who deny that clandestine marriages, 
made with the free consent of the contracting parties, 
are true and valid, so long as the Church has not ren- 

Konings, n. 1700, q. 3. 2 Cf. Konings, n. 1700, q. 2. 

Varceno, p. 455. 4 Cone. Trid., sess. 4 de edit. ; Cf. Sabetti, n. 1013. 

Cone. Trid , sess. xxiv., c. 6, de Ref. Matr. 6 Ib., sess. xxv., eap. 18 de Regular. 
Ib., sess. xxiv., cap. 9 de Ref. Matr. 8 Ib., sess. xxv., cap. 5 de Reg. 

Ib., sess. xxii., cnp. n de Ref. 



322 Excommunication. 

dered them invalid, or who assert that the marriage of 
children, without the consent of their parents, is null. * 
8. Those who say that a person in the state of mortal sin, 
having contrition, need not, even when he can do so, go to 
confession before receiving holy Communion. 2 9. Those 
who are guilty of duelling. 3 

3272. Of these nine excommunications, however, but the 
first four (n. i, 2, 3, 4,) can be said to remain in force as 
Tridentine enactments. For, of the five remaining, one r 
namely that which refers to magistrates assisting Bishops 
to preserve enclosure, has fallen into disuse ; the other four 
are contained in the Const. Apostoliccz Scdis. Thus, the 
excommunication against usurpers of ecclesiastical goods is 
comprised in Nos. u, 12, of excommunications especially 
reserved to the Holy See, and partly in No. 3, of excommu 
nications reserved to nobody. The excommunication against 
those who teach (a) that clandestine marriages are invalid, 
etc., (b) or that persons in mortal sin, etc., is included in 
No. i of excommunications reserved simply to the Holy See. 
Finally, the excommunication against duelling is comprised 
in No. 3 of excommunications reserved in a simple manner to 
the Holy See. 4 For full explanations of these punishments 
we refer the reader to moral theologies. The suspensions 
and interdicts directly inflicted by the Council of Trent and 
continued in force by the Const. Apostolicce Sedis of Pius 
IX. will be given below. 

4. Reform Punishments concerning the Election of the Pontiff + 
and the Regimen of Religions Orders. 

3273. Moreover, Pope Pius IX., in the Const. Apostolicce 
Scdis, enacts: " Quse vero censurae, sive excommunicationis 
sive suspensionis, sive interdicti, Nostris aut Praedecessorum 
Nostrorum Constitutionibus, aut sacris canonibus p raster 

1 Cone. Trid., sess. xxiv., cap. i de Ret. Matr. 2 Ib.. ses-;. xxiii.. cnn u, cnp. 7. 
3 Ib., sess. xxv., cap, 19 cle Ref. 4 Cf. Varceno, p. 955. 



Excomm ^l n tea tion. 323 

eas quas recensuimus, latas sunt, atque hactenus in suo 
vigore perstiterunt, sive pro R. Pontificis electione, sive pro 
intcrno regimine quorumcunque ordinum et institutorum 
regularium, necnon quorumcunque Collegiorum, Con- 
gregationum, Ccetuum, locorumque piorum cujuscunque 
nominis aut generis sint, eas omnes firmas esse, et in suo 
robore permanere volumus et declaramus." * Hence, besides 
the punishments enumerated by name in the Const. 
Apostolic<z Sedis, and those enacted directly by the Council 
of Trent, the above are also retained. The Const. Apostolicce 
Sedis has therefore made no change as to the censures that 
had been previously enacted by Popes or Councils in 
regard to the election of the Roman Pontiff and the internal 
regimen of religious orders or pious communities with simple 
vows only or without any vows at all, or of pious places, 
v.g., hospitals, asylums. 

3274. Here it may be asked whether the reformative 
punishments latcz sent entice concerning the internal regimen 
of religious communities, etc., as here continued in force, 
are the particular censures existing in a particular commu 
nity, enacted indeed by the Roman Pontiff, (the Const. 
Apostolicce Sedis intended to legislate only in regard to the 
censures made by the general law of the Church ; and hence 
it is evident that we do not here speak of censures enacted 
by a Superior of a religious community), but only for a 
particular religious order, etc., or the general censures made 
by Popes and Councils for all religious orders or pious places 
all over the world. There are various opinions : One 
that which is held by Avanzini, 2 Konings, 3 and others, 
affirms that they are the particular censures rrlade by Popes 
for a particular order, etc. The other, supported by the 
author of the Comm. Reat., * denies this, and maintains that 
they are the general correctional punishments made by 

1 Our Elements, vol. i., p. 440. 2 Comm. in Const. Ap. Sedis, n. 57. 

3 N. 1700, q. 2. N. 164 (2). 



324 ,jLi,om m u n ica tion. 

Popes or Councils for the internal regimen of religious 
communities in general. 

3275. The first or affirmative opinion is based chiefly on 
the argument that the Const. Apostolicce Sedis expressly, i.e., 
by name, confirms or re-enacts certain general medicinal 
punishments, relating to the internal regimen of these 
communities or places, v.g., those which enforce enclosure. * 
Now it would be useless to expressly renew these punish 
ments, if they were already declared to remain in force by 
the above clause of the Const. Apostolicce Scdis : Quce vero 
censurce .... latce sunt, .... pro inter no regimine quorumcunque 
crdinum regular ium .... eas firmas esse .... volumus. It 
certainty would appear superfluous to re-enact them twice 
in the same Constitution. 2 

3276. As will be seen from the clause of the Const. 
Apostolicce Sedis " quas hactenus in vigore perstiterunt," 
the correctional punishments concerning the election of the 
Pope and the internal government of religious communities 
and pious places are continued in force only in so far as they 
were actually in force at t/ie time the Constitution was issued. 
Consequently those which had fallen into disuse were not 
revived. 

5. The Bearing of the Constitution of Pius IX. on Vindicatory 

Punishments. 

3277. Again it must be carefully borne in mind that the 
Const. Apostolicce Sedis has reference only (a) to correctional 
punishments, (ccnsurce), (b) made by the general law of the 
Church, (c) and which are latce sententice, i.e., incurred ipso 
facto. We say first, correctional punishments ; hence it has 
made no change whatever as to the ecclesiastical punish" 
ments which are called vindicative, (pcence), such as disabilities, 
dismissals, penal transfers. Yet, when the Const. Apostolicce 
Sedis imposes correctional punishments, v.g., excommunica- 

1 Excom. vi., vii., R. Pont, simpl. res. 2 Konings, n. 1700, q. 2. 



Excommunication. 325 

tion, for a certain crime which is already punishable by the 
old law with a punitive penalty, this very fact would seem 
to indicate that the vindicative punishment is abolished or 
rather absorbed in the one contained in said Constitution. 
For it is against the principle of sound law that one and 
the same act should be punished with several punishments, 
especially when one of them is as severe as excommu 
nication. * 

3278. We say, secondly, latce s ent entice ; for the Const. 
Apostolicce Scdis has effected no change whatever in regard 
to correctional punishments which are fercndce sententice. 
It did not legislate on the latter. We say, thirdly, made by 
the general law of the Church ; for the Constitution did not 
pretend to make any legislation whatever in regard to local 
punishments inflicted by local Superiors, v. g., diocesan or 
provincial Statutes. 

3279. However, even where the Const. Apostolicce Sedis 
abolishes a reformative punishment, it must not be imagined 
that it has also given permission to do the act to which the 
censure has been attached. The prohibition remains, only 
the punisliment has been removed. 2 

6. How Correctional Punishments are reserved in this Consti 
tution. 

3280. Of the correctional punishments contained in the 
Const. Apostolicce Sedis some are reserved to the Holy See 
in a special manner ; others only in an ordinary manner ; 
others to Ordinaries; some, finally, to nobody. See Vol. I. 
No. 68 1. Of these four classes of punishments, some have 
been taken from the old lavv as it stood at the time, and 
inserted in the Constitution, without any change, v.g., the 
excom. spec., n. 10 ; the simpL excom., n. 12, 13 ; the excom. 
nem. res, n. 3. Others have indeed been taken from pre 
existing laws, but have been somewhat changed and adapted to 

1 Comm. Reat. in Const. Ap. Sedis. * Comm. Reat., 17. 



3 2 6 Excommunication. 

the altered condition of our times. * The former must be con 
strued in the light of the old canons, as interpreted by 
approved canonists ; the latter, i.e., those which were altered, 
must be construed partly according to the old canons 
(namely, as far as they have not been changed), and partly 
according to the wording of the Constitution itself. 

3281. Lastly, from what has been said, it follows that the 
Const. Apostolica Sedis of Pope Pius IX. is to be regarded 
at present as the corpus juris for correctional punishments 
lata sententice enacted by the general law, so that none of 
these punishments are now in existence, except when it is 
(a) expressly given in this Constitution, (b) or has been en 
acted since the Constitution was issued, (c) or relates to the 
internal regimen of religious houses, (d) or was directly 
inflicted by the Council of Trent. 

1 Ib., $15; Soglia-Vecch., 1. c., p. 353. 



CHAPTER III. 

SUSPENSION. 

ART. I. 
True Idea of this Punishment. 

3282. Every externally constituted society, in order to 
carry out its purpose and attain its ends, and to preserve its 
rights and guard its interests, is obliged to appoint officers 
or organs of its own, and assign to each a proper and distinct 
sphere of duties and rights. Still more is it necessary for 
such society to have the right to remove , either permanently or 
at least temporarily, from office those officials ivho either neglect 
their duty or abuse their power. No society or association, 
however small, whether religious or secular, could exist 
without this power. 

3283. Again, every official enters upon his office with the 
express or tacit promise to fulfil its obligations punctually 
and faithfully. And if, instead of doing so, he but follows 
the dictates of his capricious whims, or even of self-interest, 
it is plainly he himself who challenges the Superior by 
whom he was appointed to take the office from him again, 
and to commit it to more faithful hands. Finally, every 
official who discharges the duties of his office in an improper 
manner causes others to look with contempt upon the office and 
the society of which he is an officer. And in case he is allowed 
to remain in office he will likewise bring dishonor upon his 
fellow officials. 

3284. Guided by these principles and motives, all societies 
or associations, no matter how small, reserve in their con 
stitution and by-laws the right of removing or suspending 



328 Suspension. 

officials for sufficient cause. But especially has the state or 
civil government, both in ancient and modern times, always 
made an extensive use of the power to remove its officials, 
either temporarily or permanently, for good cause. Thus, 
in the United States, all officials whatever of the civil 
government, national or state, are subject to removal or 
suspension from office for cause and in the prescribed 
manner. 

3285. These reasons apply with much greater cogency to 
a religious organization charged with the sauctification of its 
members. In fact, at all times has this power been exercised 
by religious denominations of every description, by the 
pagan no less than the Mosaic. At the present day, all 
Protestant sects exercise it, in the United States no less than 
elsewhere. It is, therefore, superfluous to show that the 
Catholic Church the true spouse of Christ has this 
power. * She possesses it both as a society, and by the 
express will of her divine Founder. z 

3286. Definition. We shall here speak merely of relative 
or partial removal from office, i.e., of suspension, having 
already treated above of absolute or permanent removal or 
dismissal. What then is meant by suspension, in the canon 
ical sense of the word ? It is a canonical correctional pun 
ishment (censurei] by which an Ecclesiastic, that is, an officer 
of the Church, who is guilty of crime, is temporarily de 
prived, in whole or in part, of the use or exercise of the 
power which he possesses, either by reason of his or do, or of 
his office, or of his benefice or income? 

3287. We say, by which an Ecclesiastic, etc. ; for a sus 
pension can fall only on Ecclesiastics, or officers of the Church, 
since it is essentially, as appears from its definition, a pun, 
ishment which forbids the exercise of the ecclesiastical 

1 Kober, Susp., p. 4. 2 Cf. I. Tim. v. 19, 20. 

3 Schmalzg., 1. 5, t. 39, n. 263 ; Prael. S. Sulp., t. iii., n. 781 ; Leur., For. eccl. 
I- 5, t. 39, q. 567. 



Suspension* 3 29 

ministry, that is, it forbids a person to exercise those rights 
and privileges which he possesses, not in Jiis capacity of 
layman, but of Ecclesiastic. 

This feature constitutes the characteristic and essential 
difference between suspension and the other correctional 
punishments. For both excommunication and interdict dis 
possess a person also of rights and privileges which he holds 
as an ordinary member of the Church, and, therefore, by virtue 
of his baptism ; while suspension divests a person of the 
rights which he has as an officer of the Church, and which 
he therefore possesses by reason of Jiis ordination. In other 
words, excommunication and interdict prohibit the enjoy 
ments of rights and privileges which are the common proper 
ty, so to speak, of all the faithful ; suspension forbids the use 
of those rights which are peculiar to the ecclesiastical or cleri 
cal state. 

3288. From this it will also be seen that an Ecclesiastic who 
is suspended, even though the suspension be complete and 
absolute, not merely partial, may nevertheless assist at Mass 
and other sacred functions, receive the Blessed Eucharist, 
and, in a word, enjoy all the other spiritual privileges which 
are common to all the faithful as such. For he possesses 
these rights, not as an officer, but as a lay-member of the 
Church. 1 

3289. We say, moreover, who is guilty of crime ; for, as we 
have shown at length, neither suspension nor any other cor 
rectional punishment can be inflicted except for crime. <L 
Neither can it be imposed, as we have also fully proved, 
without a previous trial, except in those cases where it is 
allowed to proceed ex informata conscientia. 3 

3290. We say, finally, of the use or exercise ; for suspension 
does never, at least per se, deprive a person of the office or 
benefice itself. It is essentially but a temporary prohibition 
to exercise the functions of such office or benefice. 

1 Stremler, l.c., p. 293. 2 Supra, n. 2021. 3 Supra, n. 1279 sq. 



33 Suspension . 

ART. II: 
Various Kinds of Suspension. 

3291. Suspension is divided into three kinds : (a) suspen 
sion from the office only suspensio a solo officio by which 
an Ecclesiastic is removed from the exercise of acts of the 
ordo and \hejurisdictio ; (b) suspension merely from benefice 

suspensio a solo beneficio by which an Ecclesiastic, retain- 
ing intact the use or exercise of the power of order and 
jurisdiction, is deprived of the income of his benefice or 
office ; (c) suspension simultaneously from both the office 
and the benefice suspensio fib officio simul et beneficio by 
which he is forbidden, not only to exercise any act, whether 
of order or of jurisdiction, but also to receive the income or 
salary of his office. 

3292. Some canonists divide suspension into (a) suspension 
ab ordine, (b) ab officio, (c] and a beneficio. Schmalzgrueber l 
however and others, whose example we follow, simply 
divide it into suspension ab officio and a beneficio, including 
in the suspension ab officio the suspension from acts both of 
the ordo and the jurisdictio. 2 

3293. When the suspension is ab officio simul et beneficio, 
it is complete and total, absolutely speaking. But when it is 
merely from cither of them, or but from some individual act 
pertaining to either, it is partial or incomplete. Schmalz 
grueber 3 says that, when the suspension is inflicted absolute 
ly and without any restriction, so that from the context of 
the sentence it cannot be ascertained whether the suspension 
is merely ab officio or a beneficio, it is to be taken as imposed 
both from office and benefice. 4 

3294. Again, the suspension merely from office (a solo officio) 
may be in turn total or partial, so far as concerns the acts 

* L.c., n. 267, 268; Stremler,l.c., p. 295. 2 Cf. Craiss., n. 6572. 

3 L. c., n. 266. * Prael. S. Sulp., n. 783. 



Suspension. 331 

of order and jurisdiction. Thus the suspension a solo officio 
is total, when it forbids the exercise of all acts whatever of 
order, jurisdiction, and ecclesiastical administration ; it is 
partial, when it prohibits (a) merely the exercise of acts of 
the ordo, either in whole or only in part ; * (b) or merely acts 
of \^& jurisdictio, whether in whole or in part. 2 In other 
words, a person may be forbidden to exercise any act what 
ever, whether of the or do or of thejurisdictio, or only this or 
that act of either. When the suspension is merely from acts 
of the ordo and not of the jurisdictio, it is called suspcnsio 
a divinis, or ab or dine, or ab officio sacerdotali. 3 

3295. Likewise, the suspension a solo bcncficio may be, so 
far as concerns the income, salary, or temporal emolu 
ments, either total or partial. In other words, an Ecclesiastic 
may be temporarily deprived of the entire income or only of 
part of it. Here it is necessary to call to mind that the 
suspcnsio a bencficio is never included in the suspensio ab officio, 
although the latter be inflicted absolutely and without any 
restriction. Hence an Ecclesiastic who is suspended merely 
ab officio has the full right to receive the entire income of 
his place or office, and administer the temporalities of each 
office, though he cannot perform any of its functions. 4 
Like excommunication and interdict, suspension may be 
either ferenda or latce sententice, a jure or ab homine, just or 
unjust, valid or invalid. 

ART. III. 

Effects of this Punishment. 

3296. Suspension, like the other reformative punishments 
of the Church, when validly inflicted, that is, for sufficient 
cause proved secundum allegata in judicio and with the 

> V.g., the saying of Mass. 

V.g., the hearing of confessions, or of the right to vote in ecclesiastical elections. 

3 S remler, p. 295. * Prael. S. Sulp. I.e., n. 783. 



33 2 Suspension. 

prescribed formalities, as has been shown, produces its 
effects fortJiwitJi and without any further external agency or 
execution. It executes itself. J What then are these effects ? 
They vary according to the kind of suspension inflicted. 
We shall here discuss separately the effects of the three 
kinds of suspension as above enumerated, namely (a) that 
from office ; (b) from benefice ; (c) from both at the same time. 

3297. Q. What are the effects of suspension from office ? 
A. As we have seen, suspension from office can be either 

complete or partial. If it is partial, the principle applies 
that correctional punishments, being penal laws, must be 
strictly construed, 2 and therefore not extended beyond the 
clear and express wording of the sentence imposing them, or 
the strict letter of the law enacting them. Hence a person 
suspended from the ordo is not suspended from jurisdictio, 
and can therefore exercise any act of jurisdiction that does 
not require at the same time the actual exercise of the ordo. 
Thus a Bishop who is suspended from the ordo only can 
delegate to others the power to absolve, though he himself 
cannot hear confessions and grant absolution. 

3298. Nay, a person who is suspended only from this or 
that act of orders, can exercise all the other powers of 
orders. Thus a Bishop who is suspended merely from the 
ordo cpiscopalis or a pontificalibus, can exercise the ordinary 
sacerdotal functions, as exercisible by any Priest, such as 
hearing confessions, saying Mass not in pontificals, etc. 3 
Likewise, a person suspended from priestly functions is not 
suspended from the functions of a deacon or subdeacon. 
The same principles apply to suspension from jurisdictio. 
From this it is evident that there are as many grades of 

1 Cf. Kober, Susp., p. 88. 

2 Thus the reg. jnr. 49 in 6 says : " In poenis benignior estinterpretatio facienda. r 
Again : ( >dia restringi, et favores convenit ampliari." (Reg. 15 de Reg. Jur. ia 
60.) 

3 Schmnlzg., 1. c.. p. 290. 



Suspension. 

suspension as there are functions, degrees, or acts, whether 
of order or of jurisdiction. 

3299. If, on the other hand, the suspension from office is 
total, its effect is to prohibit absolutely all acts whatever, 
whether of order or of jurisdiction. This principle is 
founded in the very meaning of the word office officium^ 
which, in the language of the Sacred Canons and according 
to the general usage of the Church, has always and every, 
where been used to designate the ecclesiastical office in its 
entirety ; that is, all the rights whatever, whether of order or 
of jurisdiction, attached to or connected with said office, * 
and if a person thus suspended is officially denounced as sus 
pended, his acts of jurisdiction are, as was seen, ipso 
jure void. 

3300. We say if officially denounced ; for if he is tolerated, 
i. e., not published as suspended, his acts of jurisdiction are 
valid, though illicit, unless performed at the request, tacit 
or express, of the faithful. 2 We say, moreover, of juris 
diction ; for acts of the or do in the case are perfectly valid, 
though, of course, sinful, since the power of the or do can 
not be taken away by the Church. 3 

3301. According to some canonists, a person who is sus 
pended ab officio is, by that very fact, also suspended a 
beneficio, on the plea that the income or salary is merely an 
accessory of the office, and that the accessory follows the 
condition or status of its principal. Against these few, all 
other canonists hold it as certain, as was seen, that a person 
who is suspended from office is not eo ipso suspended from 
benefice, 4 on the well-known maxims that penal laws are to 
be strictly construed, and that the income of an office is not 
forfeited by the incumbent, simply because he has become 

1 Arg. cap. i de sent, in 6 (II. 14); Cf. Kober, Susp., p. 88; Schmalzg., 
1. c., n. 2, 4. 

3 Schmalzg., 1. c., n. 309. 3 Kober, 1. c., p. 103. 

4 Schmalzg., 1. c., n. 297; Reiff., 1. 5, t. 39, n. 168. 



3 3 4 Suspens ion . 

temporarily disqualified, or even permanently unable to dis 
charge the duties of such office. 

3302. Thus the law of the Church expressly provides that 
an Ecclesiastic who, by reason of sickness, old age, or want 
of sufficient talent, is unable to attend to the duties of his 
office, 1 shall nevertheless receive the income thereof, less, 
however, the salary of the coadjutor or vicar who is to be 
.assigned to him. 2 Hence an Ecclesiastic suspended ab 
officio can continue to receive the income of his office, minus 
the allowance which has to be given to the person who is 
appointed to act as his substitute and discharge the duties 
of the office, for the time of the suspension. 5 

33O3- Q- What are the effects of suspension from benefice ? 

A. We premise: By benefice we here mean the revenue 
or income of any ecclesiastical office whatever, removable or irre 
movable, and not merely of a benefice in the strict canonical 
sense of the term. 

3304. We now answer: i. As suspension from office does 
not, as was seen, comprise suspension from benefice, so 
neither does suspension from benefice include suspension 
from office. For these two kinds of suspension are clearly 
and constantly distinguished from each other in the Sacred 
Canons. 4 Now this would be superfluous, if they both 
meant one and the same thing. Hence a person, as was seen, 
may be suspended from or forbidden to receive the income 
of his ecclesiastical office or charge, and at the same time 
allowed, nay, obliged to perform all the functions of such 
office. In other words, a person may be suspended solely 
from the income or salary, without being suspended from 
any act, whether of order or of jurisdiction. 

3305. 2. Suspension from benefice deprives a person, not 
merely of the income or salary, but, moreover, of the admin- 

1 Cap. I, 3, 4, de cleric, aegr. (iii. 6); Cone. Trid., sess. xxi., Cap. 6 de Ref. 

2 Schmalzg., 1. c. 3 Munchen, 1. c., vol. ii., p. 232. 
4 Cap. 10 de purg. can. (v. 34). 



Suspension. 335 

istration of the temporalities of his office or benefice. l In 
other words, a person suspended from benefice cannot lease 
any lands or houses belonging to his benefice, nor sell any of 
its property or fruits, nor plead in court, either personally or 
through others, as the representative of the office ; in short, 
he cannot perform any act which relates to the administra 
tion of the temporalities of his benefice or office. 2 Hence, 
also, an administrator should be appointed to manage the 
temporalities, or the person suspended may himself be au 
thorized to continue the administration. 3 

3306. 3. Suspension from benefice or income does not 
deprive a person of tJie office or benefice itself, as has been re 
peatedly said, but merely of its income or emoluments ; 
consequently a person suspended merely from benefice must 
perform all the duties of the office without drawing any in 
come or salary therefore. But is a person thus suspended 
to be left without any means of support and thus, if poor, obliged 
to beg? We have given a full and detailed answer to this 
question above, under Nos. 1859 l88o > where we also apply 
the principles of canon law on this point to the United 
States and other missionary countries. 

ART. IV. 
Punishments incurred for violating Suspensions. 

3307. Q. What sin does a person commit, and what pun 
ishment does he incur by disregarding suspension ? 

A. We have already answered this question at considerable 
length above, under Nos. 3117 and 3123. According to the 
principles there laid down, a suspended person contracts 
unfitness for orders, that is irregularity, only when he 

1 Schmalzg., 1. c., n. 303. 

- Arg. Cap 8 de dol. et cont. (ii. 14) ; Cap. I. 26 de Blect. in 6. 

:i Munchen, 1. c., p 235. 



336 Suspension. 



violates the suspension ab or dine, that is, when he solemnly 
exercises an act or function of the ordo. For the law of the 
Church nowhere enacts that a person shall incur the dis 
qualification in question by setting at nought the suspension 
from benefice or jurisdiction. 

3308. However, a person, as was noted above No. 3123, 
who violates the suspension from benefice or from jurisdic 
tion, v. g., by drawing his salary or exercising an act of 
jurisdiction, is otherwise punishable, according to the 
discretion of the ecclesiastical judge or Superior, and may 
even be wholly deprived of his office or benefice according 
to the nature of the offence. 

3309. Here it may be asked : Does a person incur unfit- 
ness for orders (irregular it as) for violating a suspension ab 
ordine, when the suspension is inflicted, not as a correctional 
(censurd), but as a vindicatory punishment (pcend)! We 
premise, as has been already explained, suspension (and 
also partial interdict, but not excommunication) may be 
inflicted not merely as a reformative punishment, but also 
as a purely punitive, for crimes altogether past. 1 

3310. We now answer: the question is controverted. 
Kober, 3 Stremler, the author of the Prael. S. Sulpitii, 3 

and others maintain the affirmative, namely, that he does in 
cur the unfitness. They prove this assertion chiefly from the 
Cap. Cum (Ztcrni \, dc sent, ct re jud., which decrees that 
ecclesiastical judges guilty of injustice shall be suspended 
from office/*;- one year, and that, if they disregard this 
suspension, they shall incur irregularity. Here, then, say 
the above authors, is a penal, not a correctional suspension, 
since it is inflicted for a specific period, namely one year, 
and yet its violation produces irregularity. Again, con 
tinue these canonists, the S. C. C. has repeatedly decided 
that the violation of the suspension inflicted ex informata 

1 Supra n. 2035. " Susp., p. 95. 3 N - 7^2. 



Suspension. 337 

cjuscicntia entails irregularity. Now this suspension is 
usually inflicted as a pure punishment, and not as a censure, 
since it is imposed without any previous canonical warning. l 
S. C. de Prop. Fide, Instr. 20 Oct. 1884, 11. 

3311. St. Alphonsus, - however, holds the opposite or 
negative opinion as absolutely more probable, chiefly on the 
ground that the law decrees or inflicts irregularity only for 
censure and not for pure punishments. St Alphonsus, how 
ever, confines his conclusion to suspensions which are penal, 
i. e., punitive, in the strict sense of the word, namely those 
imposed ab homine by sentence and for a crime completely 
past, and does not apply it to suspensions, which are inflicted, 
indeed, for a fixed period, butter modum statuti aut prcecepti 
for a future crime, since such suspensions are in his opinion 
not purely penal. 

3312. Q. How can it be known when a suspension is 
inflicted not as a correctional (censure) but as a vindicatory 
punishment (poena) ? 

A. We premise: suspension assumes the nature of a 
purely punitive punishment, when it is inflicted (a) for a 
crime which has no present continuance nullum Jiabens 
tractum successivum but is altogether past, (b) and not so 
much for the sake of reforming the delinquent, as of punishing" 
him. 

33I3- We now answer: It may be laid down as a rule 
that a penal suspension differs from a correctional as follows : 
i. The medicinal suspension must always be preceded by a 
canonical warning, general or special ; s while no canonical 
admonition or precept is required, at least absolutely speak 
ing, for the punitive suspension, though, as was seen, it is 
necessary that the accused shall be given a canonical trial 
and that he be juridically convicted of crime. 2. The correc- 

1 Bened. XIV. De Syn., 1. 12, c. 8, n. 5 ; Craiss., n. 1796. 

2 L. 7, n. 314. 3 Supra, n. 1780. 



^5^ Suspension. 

tional suspension is not inflicted for a specified time, while 
the punitive is. 3. The reformative suspension ceases by 
absolution ; the punitive by dispensation, by pardon, or by 
the lapse of the time for which it was imposed. * Hence 
it may be taken for granted that the suspension is a mera 
pocna and not a censnra, when it is inflicted without a pre 
vious canonical warning and for a fixed time, v. g., three 
months, or ad beneplacitum snperioris. a 



ART. V. 
Formalities in inflicting Suspensions. 

3314. Q. What are the formalities which the Bishop or 
ecclesiastical Superior is bound to observe, also in the 
United States, when he is about to inflict suspension ? 

A. We have already given a full and comprehensive an 
swer to this question above, under Nos. 2044 sq. The sum 
and substance of what we have said there is, that the Bishop, 
prior to imposing suspension, is to give the accused (a) the 
canonical warning, (b) the precept, (c) the trial. When the 
suspension is inflicted, not as a reform measure, but as a 
vindicative punishment, the trial alone is sufficient. The 
admonitions and the precept are not, absolutely speaking, 
required. 

3315. The only exception to this rule is where suspension 
is inflicted ex informata conscientia, which, as was seen, can 
be imposed as well with as without any previous canonical 
warnings or juridical proceedings. It should be observed 
here that the only kind of suspension which is imposable ex 
informata conscientia, or without trial, is the suspension from 
orders, and from ecclesiastical degrees or offices, and digni 
ties or honors. Hence Bishops, also in the United States, 
cannot, at least directly, suspend Ecclesiastics, ex informata 

1 Prael. S. Snip., n. 782. 3 Craiss., n. 6573, 6589. 



Suspension, 339 

conscientia, a beneficio, that is, from administering or receiving 
the income of their parish or office. A fortiori, they cannot 
impose dismissal (frivatid) or absolute removal from office 
or parish, ex informata conscientia. 

3316. While, however, the suspension which is imposed ex 
informata conscientia does not fall directly upon the benefice 
or income, it may, nevertheless, do so indirectly. Thus, if a 
Rector of a mission or parish is suspended from the cur a 
animarum, and it becomes necessary to have the duties per 
taining to the cura performed by a substitute during the 
time of the suspension, this substitute will receive a suitable 
income or salary, the amount of which is determined by the 
Bishop, and deducted, at least in part, from the income of 
the suspended incumbent. If the latter considers the 
amount too large, he can appeal to the Metropolitan or also 
to the Holy See. 

3317. This is expressly decreed by the Propaganda, in its 
latest Instruction Supra suspensionibus ex informata conscien 
tia, issued Oct. 20, 1884, and embodied in the Third Plenary 
Coitncil of Baltimore. The words of the Sacred Congrega 
tion are : " Debent insuper exprimi partes exercitii ordinis 
vel officii, ad quas extenditur suspensio ; quod si suspensus 
interdictus sit ab officio, cui alter in locum ipsius substitu- 
endus est, ut puta ceconomus in cura animarum, tune 
substitutus mercedem percipiet ex fructibus beneficii in ea 
portione, quae juxta prudens Ordinarii arbitrium taxabitur. 
At si suspensus in hac taxatione se gravatum senserit, 
moderationem provocare poterit apud curiam Archiepisco- 
palem, aut etiam apud Sedem Apostolicam" : See above, 
Vol. II., Nos. 1286 sq. ; Our New Procedure, No. 85 sq. 

1 Instr. S. C. de Prop. Fide supra Susp. ex informata consc., 4, 



340 Suspension. 

ART. VI. 
Release from Suspensions. 

3318. Q. How is suspension taken away, or how does it 
cease ? 

A. We have already answered this question above under 
Nos. 3^24 sq. Here we merely add that, when suspension is 
inflicted ad beneplacitum, it lapses of itself by the death, 
resignation, or removal of the Superior by whom it was 
inflicted ; if it is inflicted ad beneplacitum Scdis, it ceases only 
by dispensation of the Superior or his successor, not by his 
death or removal. x Observation. When the suspension has 
been really incurred by a person, it binds him wherever he may 
be, and consequently also outside of the diocese of the 
Bishop by whom it was imposed. For it adheres to Ids person, 
and consequently accompanies him everywhere. Hence 
canonists aptly say of suspension, or of excommunication, 
afficit personam eamque seqiiitur sicut lepra leprosum. * There 
fore he remains under it until he is properly relieved from 
it, as shown above. 

3319. Q. Can suspension be inflicted f or venial sins ? 

A. The answer has been already given above, under Nos. 
2021 sq. 

ART. VII. 
Suspensions a jure com. and latcz sent, in Force at present. 

3320. Q. What suspensions a jure com. and latce sentenlia 
are now in force ? 

A. Only those, as was seen, (a) which are expressly 
enumerated in the Const. Apostolicce Sedis of Pope Pius IX., 
(b) and those inflicted originally or directly by the Council 
of Trent, (c) and finally those which regard the election of 

1 Craiss., n. 6588. 2 Kober, Susp., p. 89. 



Suspension. 341 

the Supreme Pontiff, and the internal regimen of religious 
houses and pious places. We have already, in the first 
volume, pages 513 sq., sixth edition, given the suspensions 
contained expressly in the Const. Apostoliccc Sedis of Pius 
IX. It but remains, therefore, here to add those inflicted by 
the Council of Trent, which continue in force. 

3321. They are as follows: i. Bishops ordaining persons 
not subject to them without the permission of their own 
Bishop, are ipso facto suspended for one year from confer 
ring orders, 2. and the person thus ordained is ipso facto 
suspended from the orders thus received, for as long a period 
as shall seem expedient to his own Ordinary. 3. Bishops 
performing pontifical functions, v.g. t conferring orders, even 
though it be upon their own subjects, out of t heir own diocese, 
without the express leave of the Ordinary of the place, are 
ipso jure suspended from the exercise of episcopal functions, 
i. e., of those functions which are acts of the ordo episcopalis, 
and not merely of the priestly order; 4. and those so 
ordained shall be similarly suspended from the exercise of 
their orders. 2 

3322. 5. Titular Bishops, i. c., Bishops having no sees, 3 
conferring orders, major or minor, or even first tonsure, 
on a person who is the subject of another Bishop, even 
though he be their own domestic, without the express con 
sent of or without letters dimissory from that individual s 
own Bishop, are ipso jure suspended for one year from the 
exercise of pontifical functions ; 6. and the person so 
promoted (provided he is in bad faith) shall in like manner 

1 Cone. Trid., sess. xxiii., cap. 8 de Ref. The person ordained, in order to incur 
the suspension, must be ordained knowingly, i. e., he must be in bad faith. Kober, 
Susp. p. 151. Observe that, according to Const. Apostolicce Sedis of Pius IX., a 
person, even in good faith, who is ordained by a Bishop who is excommunicated, sus 
pended, or interdicted by name, and denounced as such, does not incur suspension, 
but yet is prohibited from exercising the order thus received, till dispensed by the 
Holy See. 

2 Cone. Trid., sess. vi., cap. 5 de Ref. 3 Supra, vol. i., p. 513, sixth edition. 



3 4 2 Suspension. 

be suspended from the exercise of the orders thus received 
for as long as to his own Prelate shall seem fit. l 

3323. 7. A person promoted to orders per saltum, that is, 
by leaping over or omitting an intermediate order, is ipso 
facto suspended from the order thus received, and can be 
promoted to a higher order only by dispensation, which can 
be granted by the Bishop, provided such person has not 
exercised the ministry of the order received per saltum. * 
We say, provided, etc. ; for if he exercise the ministry in the 
case, he incurs irregularity, and then the dispensation or 
permission to be promoted to higher orders can be given 
only by the Holy See. 3 The Church has at all times or 
dained that persons should be promoted to orders only 
step by step gradatim, receiving first the lowest, then the 
next highest, and so on, without omitting any intermediate 
grade. 

3324. 8. Persons who, without being constrained to re 
ceive sacred orders, by reason of some Ecclesiastical office 
received or about to be received, are promoted to major 
orders through letters dimissory of Chapters or Vicars- 
Capitular or their agents, given during the first year of the 
vacancy of the Episcopal see, are ipso facto suspended from the 
exercise of the orders thus received, during the pleasure of 
the next appointed Bishop ; * 9. and if the Chapter, Vicar- 
Capitular (with us, administrator), or any other persons 
whatsoever, who, during the vacancy of the See, succeed to 
the jurisdiction of the Bishop, in lieu of the Chapter, shall 
presume to give letters dimissory within the first year of the 
vacancy, they shall also be ipso jure suspended during a year 
from their office and benefice. 5 

3325. 10. Abbots conferring tonsure or minor orders, 
save upon regulars who are their own subjects ; in like 

1 Ib., sess. xiv., Cap. 20 de Ref. 2 Ib., sess. xxiii., c. 14 de Ref. 

3 Kober, Susp.,p. 211. 4 Cone. Trid., sess. vii., C. 10 deRef; sess. 

6 Ib., sess. xxiii., c. 10 de Ref. ; Supra, vol. i., n. 637. 



Suspension. 543 

manner, other exempted persons not sending the letters 
dimissory for the ordination of their subjects to the Bishop in 
whose diocese they are, are ipsojure suspended for one year 
from their office and benefice. * n. Finally, at least, where 
the Tridentine decree Tametsi is published or obtains, 2 all 
priests, secular and regular, who shall presume to unite 
in marriage persons belonging to another parish, or to bless 
them when married, without the permission of their parish 
priest, shall remain ipso jure suspended, until absolved by 
the Ordinary of that parish priest who ought to have been 
present at the marriage, or from whom the benediction 
ought to have been received. 3 

3326. Note I. As will be seen, the above suspensions, under 
Nos. i-io, refer exclusively to, or are incurred solely by those 
Bishops and inferior Ecclesiastics who violate the Sacred 
Canons concerning ordinations. The nth regards priests 
solemnizing or blessing marriages contrary to the decree 
Tametsi. 

3327. Note II. Again observe, that of the suspensions 
under i-io three are incurred by Bishops and are reserved 
to the Pope ; the others are incurred by others and are 
reserved simply to Ordinaries. 4 

3328. Note III. Of the three regular correctional punish 
ments namely excommunication, suspension, and interdict, 
suspension is tlie one which is at the present day most commonly 
inflicted. 5 Hence, also, it will be seen how important a 
correct idea of this punishment, in all its parts, is both to the 
superior and the inferior. To the former, that he may 
know when, for what cause, and in what manner he can 
inflict it; to the latter, that he may, when justly and validly 
visited with this punishment, acknowledge its justice and 

1 Cone. Trid., 1. c. ; Cf. Varceno. p. 969. 

2 Supra, vol. i., n. 660. 

3 Cone, Trid., sess. xxiv., cap. I de Ref. Matr. 

* Vaf , p. 966. 6 Stremler, 1. c., p. 293. 



544 Suspension. 

bow to it, or, when unjustly and invalidly punished by it, 
seek and apply those remedies which the law of the Church 
places in his hands, and not look for redress in the secular 
courts. 



CHAPTER III. 

THE ECCLESIASTICAL INTERDICT. 
(Inter dictum?) 

ART. I. 
Correct Notion of the Interdict. 

3329. The word interdict is synonymous with prohibition 
or inhibition. In general it means the act of a person 
forbidding something. As here understood, the interdict 
means a regular correctional punishment of the Church, by 
which, in punishment of crime, the public celebration oi 
divine service (officia divina), the administration of certain 
sacraments, and ecclesiastical burial are forbidden in certain 
places or to certain persons. 1 The meaning of this defini, 
tion will be rendered more clear, when we come to describe 
the effects of this punishment. 

3330. The origin of the interdict dates back to the early 
days of the Church. Thus we read in the history of the 
Church that already in the fifth and sixth centuries 
persons guilty of certain crimes, v.g. y impurity, perjury, 
were forbidden to receive the Blessed Eucharist, or to enter 
the Church and assist at the divine service, either for a 
fixed time, v.g., one year, or for an indefinite period, that is, 
until they amended. 2 Here we have a partial interdict. 
It was, however, only in the eleventh century that the 
canonical interdict received its full development. It con 
sisted in the discontinuance of all public worship and all 

1 Arg. cap. Alma 24, de sent, excom. in 6 (v. n); Leur., For. eccl., 1. 5 V 

t. 39, q- 573- 

* Can. Ad mensam 24, C. xi., q. 3; Miinchen, 1. c., vol. ii., p. 196. 



346 The Ecclesiastical Interdict. 

solemn ecclesiastical functions, and was inflicted upon a 
whole kingdom or realm, or only on an individual city or 
church, or upon all or only some of the inhabitants of such 
places. 

3331. Modern canonists generally remark, and not without 
truth, that interdicts, at least in the above comprehensive 
sense, have now gone completely out of use. 2 We say, at least 
in the above comprehensive sense ; for partial and particular 
interdicts are still in vogue, as may be seen in the Const. 
Apostolicce Sedis of Pope Pius IX., 3 and in the Second Plenary 
Council of Baltimore. 4 

3332. Specific characteristics of the interdict. While this 
punishment differs from excommunication and suspension, 
it nevertheless partakes of the nature of excommunication, 
and has some things in common with it. Thus, like excom 
munication, the interdict deprives members of the Church 
of spiritual benefits to which all the faithful, without excep 
tion, are entitled. But excommunication, as was seen, is 
far more comprehensive than the interdict. It is a total, 
though temporary exclusion from the Church and all its 
privileges ; whereas the interdict does not exclude a person 
from the Church, but merely deprives him of certain rights 
and privileges, and is, so to say, a certain suspension of the 
laity. 5 Hence also, it is very properly said, that the inter 
dict is a species of mild excommunication. 6 

3333. Another difference between excommunication and 
suspension on the one hand, and interdict on the other, is 
that the latter acts not merely on persons, but also on 
places, while the former can directly fall only on persons, not 
places. The interdict, however, has this in common with 
both excommunication and suspension, that it is, like them, 
a correctional punishment, and therefore aims at the reforma- 

1 Permanedtr, 1. c., p. 545, 2 Fessler, Excom. and its Effects, p. iv. 

- 1 Interdict, n. i, 2. 4 N. 186. 

6 Can. 2, c. 36, q. 4. 6 Miinchen, 1. c., p. 208. 



The Ecclesiastical Interdict. 347 

tion of the offender rather than his punishment. It may, 
however, as has been said, be inflicted also as a purely 
punitive chastisement. 

3334. Let us now see how the interdict differs from sus 
pension. The latter, as was seen, deprives an Ecclesiastic 
of rights which he possesses as an Ecclesiastic, that is, of 
official powers and privileges ; whereas the interdict divests a 
person only of those ecclesiastical benefits which he enjoys 
as a lay member of the Church. Hence, also, the interdict 
can fall directly only on the laity and not upon Ecclesiastics, 
in their capacity of Ecclesiastics. We say, directly ; for in 
directly or mediately, it acts also on clerics, namely in so 
far as the)* are not allowed to perform for others, or the 
laity who are under an interdict, certain ecclesiastical 
functions. In other words, the clergy are forbidden to 
celebrate divine service, etc., only because the laity, who 
are interdicted, cannot assist at them. It is true that 
Ecclesiastics can be directly interdicted from entering a 
church ; but, as Miinchen x observes, this interdict is rather 
a species of suspension than a real interdict. 

ART. II. 
Various kinds of Interdicts. 

3335. There are three kinds of interdict, namely local, 
personal, and mixed. The local (interdictum locale] is that 
which acts directly on a place or locality, forbidding in such 
place the celebration of divine worship, i. e., Mass and other 
ecclesiastical functions, the administration of certain sacra 
ments, and the giving of ecclesiastical burial. This interdict 
affects persons only indirectly, namely in as far and as long 
as they are in the place interdicted, so that, when they leave 
it and go to another not under an interdict, they can assist 

1 L. c., p. 214. 



348 The Ecclesiastical Interdict. 

at Mass and receive the sacraments, together with Christian 
burial. This local interdict is either general or particular, 
according as it extends to an entire city, province, or realm, 
or only to an individual church. * 

3336. The personal interdict (inter dictum personale] is that 
which acts directly and immediately on persons^ forbidding 
them (a) to hear Mass or assist at other divine services, (b) 
to receive certain sacraments, (c) and to be given ecclesiasti 
cal burial. As this interdict adheres to persons, it follows 
them wherever they may go, and binds them everywhere. 

3337. Like the local interdict, the personal may be imposed 
(a) either on a number of persons forming a moral or politi 
cal body, v.g., upon all the inhabitants of a state, city, parish, 
religious community, or other body corporate, or confrater 
nity, (b) or on some particular individual or individuals, v.g., 
upon Peter or Paul. 2 In the latter case, it is called particular ; 
in the former, general. Again, it may be inflicted either in 
(a) all its severity, i.e., in such a manner as to produce all 
the effects of the personal interdict, (b) or only some of them, 
v.g., if a person is interdicted from the celebration of the 
Mass, or from the reception of the sacraments, or from 
entering the church. 3 In the first case, the personal interdict 
is called total ; in the second, partial. 

3338. We observe that the interdict of entering a church 
(inter dictum ab ingrcssu ecclesicz) which we have just men 
tioned must not be confounded with the suspension from 
entrance into the church (suspcnsio ab ingressti ccclesice). The 
former, the interdict or prohibition to enter a church, 4 
forbids a person to enter a church in order to celebrate or 
assist at Mass or other divine service there, or to perform 
any other act of the or do in a church. Now, by church is 

1 Leur., 1. c., q. 573. - Schmalzg., 1. v., t. 39, n. 324. 3 Tb., n. 325. 

4 This species of prohibition or interdict is not comprised in the ordinary interdict,. 
but is a kind of special or separate interdict. Hence it is incurred only when it is 
expressly and s penally imposed. (Schmalzg., 1. c.. n. 383.) 



The Ecclesiastical Interdict, 349 

here meant any temple or other place set apart by the 
Bishop ior public worship. Hence a person thus interdicted, 
can go into and celebrate Mass and other divine functions, 
or assist at them, in a private oratory or in a cemetery chapel. 
Nay, such person may even enter a church, as above 
denned, in order to pray there, provided it be not during the 
time when divine service is going on there. * On the other 
hand, the suspension ab ingressu ccclesice is the same as the 
suspension a divinis, which has been already explained above,, 
under the heading of suspension. 

3339- ^ e have above stated in general what places are 
interdicted when the interdict is a general local one. We 
shall now explain this a little farther. What places, then, are 
comprised under a general local interdict? i. If a city is 
interdicted, all its suburbs together with their buildings are 
also interdicted. All the churches in such city also fall 
under the interdict, the cathedral not excepted. 2. If a 
diocese is laid under an interdict, all the cities, towns, and 
localities of such diocese with its churches fall under it. 
3. When a church is interdicted, all its chapels and the ad 
joining cemetery are also interdicted. The reason in each of 
these cases is that, when something is interdicted as a whole, 
all its parts and places contiguous to it are included. 

3340. Furthermore, a local interdict, as we have seen, 
acts only indirectly on persons. In other Avords, Ecclesias 
tics cannot publicly celebrate divine worship, and the 
faithful cannot assist at it, in the place interdicted, not 
because they themselves are forbidden to celebrate or assist 
at it, but solely because \\\Q place or locality is declared to be 
one where the above actions shall not take place. 

3341. From this it is plain that no one can celebrate or 
assist at divine service in the place interdicted. Hence the 
local prohibition or interdict must be observed, so far as 
concerns the public celebration of divine worship, etc., by 

1 Schmalzg., 1. c., n. 383 ; Stremler, 1. c., p. 346. 



3 5 o The Ecclcsiastica I Interdict. 

all persons whatsoever who may be in the place, and 
consequently also by strangers, by the laity and the clergy, 
by the regulars, i. e., exempted persons no less than by the 
secular Ecclesiastics, nay, even by the Bishop himself by 
whom the interdict was fulminated. 

3342. We say, " so far as concerns the public celebration," 
etc. ; for, as we shall see below, Ecclesiastics, both secular 
and regular, may every day privately, i.e., with closed doors, 
in a low voice, without the sound of bells and without 
.admitting those who are interdicted by name, or gave 
cause to the interdict say Mass, recite the office, etc., in 
churches and monasteries. 1 Before the time of Pope 
Boniface VIII. this was not allowed. The rigor of the old 
law was relaxed by this great Pope in his decretal Alma, 
which now forms the law on this head. Of course, it is 
clear that Ecclesiastics, secular or regular, cannot celebrate 
as above, if they are themselves under a personal interdict, 
nor can they do so in the case of a special local interdict, 
v.g., in a church specially interdicted, nor in the case of a 
general personal interdict ; they can do so only in a general 
local interdict. z Moreover, those who are the cause of the 
interdict (we speak here of a general local interdict), i. e., 
those on account of whose crimes and wicked conduct the 
interdict has been inflicted, are expressly excluded by Pope 
Boniface VIII. (1294-1303), in his celebrated decretal Alma, 
which forms at present the law of the Church on this mat 
ter, from the above privilege of celebrating or assisting at 
divine service. For they incur ipso facto also a personal 
interdict, 8 and consequently cannot take part in divine 
worship anywhere, even out of the place interdicted. 4 

3343- Having shown what places fall under a local interdict 
when it is a general one, also what persons and how persons 

1 Cap. Alma 24 de sent, excom. in 6 (v. II.) 

2 Schmalzg., 1. c., n. 366; Stremler, p. 355. 

3 Cap. Si sent. 16 de sent, excom. in 6. Schmalzg,, 1. c., n. 333. 



The Ecclesiastical Interdict. 351 

are indirectly affected by it, we now proceed to the personal 
interdict. What persons then are comprised under a personal 
interdict, when the latter is general, i. e., when a nation, 
community, or other moral or corporate body is interdicted? 
Each and every member of such nation, or community, or 
body corporate, and consequently (a) also those who are inno 
cent, for they fall under the interdict because they are mem 
bers of a guilty community ; (b) Ecclesiastics and religious, 
unless they are declared exempt from it. 

3344. The following persons, however, are exempted from 
a general personal interdict: i. Strangers, v.g., merchants, 
students, government officers, even though they have lived 
for a considerable time among the interdicted citizens ; 2. 
Bishops, unless they are expressly mentioned ; 1 3. Infants 
not yet arrived at the use of reason nondum doli capaces, 
and insane persons. They cannot, however, receive eccle 
siastical burial, since Ecclesiastics cannot officiate at or give 
such burial. 4. Those who leave the community or people 
interdicted, in order to establish a domicile elsewhere ; for 
by that very fact they cease to belong to the community 
or people interdicted. z 

3345. 5. If the laity is interdicted, thec/ergyis not con 
sidered as interdicted ; and vice versa, if the clergy is 
interdicted, the laity is not included. 6. If the secular 
clergy is interdicted, even though by the Pontiff or other 
Superiors vested with jurisdiction over seculars and regulars, 
the religious are, at least according to the more probable 
opinion, excluded, except (a) when they have a secular bene 
fice ; for then they constitute one body with the secular 
clergy ; (b) where all ecclesiastical persons are interdicted ; 
for all religious whatever, whether male or female, are 
regarded as ecclesiastical persons. 3 

1 Cap. 4 de sent, excom. in 6 (v. II). 3 Schmalzg., 1. 6, t. 39, n. 336. 

3 Ih.. 1. c.. n. 339. 



352 The Ecclesiastical Interdict. 

ART. III. 
By Whom and for what Cause can they be imposed ? 

3346. Q. Who can inflict an interdict ? 

A. Only those who have jurisdiction in the contentious 
forum. Hence the rule is that an ecclesiastical Superior 
who can impose excommunication and suspension can also 
inflict an interdict. The following persons, therefore, can 
fulminate an interdict: i. The Pope and his legates, nun 
cios, and delegates and subdelegates ; 2. Bishops and others 
having quasi-episcopal jurisdiction over their subjects ; 3. 
Vicars-Capitular, pending the vacancy of the see. * 4. 
Regular prelates can inflict a personal interdict upon their 
subjects, but not a local one. 2 

3347. Q. For what causes can an interdict be imposed ? 
A. Only for crimes, and not for any other cause. The 

reason is that it is a grave punishment. Now reason itself 
dictates that, where there is no offence, there shall be no 
punishment. Moreover, the interdict is one of the severest 
ecclesiastical punishments. In some respects, it is even severer 
than excommunication itself. Now the Church, following 
the rules of natural and positive law, inflicts the most rigor 
ous penalties only for the most heinous crimes, 3 and even 
then only with great circumspection and but seldom, 
namely, only when the delinquent has become entirely in 
corrigible and there is no other means of bringing him back 
to the path of duty. Hence an interdict (as has already 
been said of excommunication and suspension) can be in 
flicted only for offences which, besides being external and 
complete, are mortal. 

3348. Nay, as reason and equity and natural justice 
demand that there shall be a due proportion between the 
crime and its punishment, 4 it follows that, when the interdict 

1 Cone. Trid., sess. xxiv., c. 1 6 de Ref. 2 Schmalzg., 1. 5, t. 39, n. 340, 341. 

3 Fessler, Excom., p. 17. 4 Stremler, p. 348. 



The Ecclesiastical Interdict. 353 

Is general, whether local or personal, and therefore affects a 
whole community, it cannot be inflicted save for crimes 
which are, at least in a measure, public and common, or im- 
putable to the entire community affected ; v.g., (a) when the 
crime is committed by the head of the community or of the 
civil government, and approved of by the community ; (b) if 
the community itself, such as a Chapter, in its capacity of 
community, breaks a law ; (c) where the offence, without 
being committed by the community as such, is, nevertheless, 
perpetrated by a majority of its members taken in their 
individual capacity. * Hence such an interdict can never 
be inflicted for crimes, no matter how enormous, of private 
individuals. 2 

3349. Q. Can one or more individuals (not a community) 
be put under a partial and brief interdict for a venial sin ? 

A. We have already-given the answer above, Nos. 2021, 2022, 
to which place we refer the reader. We here but add with 
Stremler 3 that, at the present day, the affirmative opinion 
is but little sustained in theory, and entirely abandoned in 
practice. Hence it would at present be rash and imprudent, 
as Stremler says, to follow in practice the opinion which 
affirms that the interdict or other censure may be imposed 
for venial offences. This becomes truer still, when we 
consider, as the same author continues, that the spirit of the 
Church in our day is to use the censures more sparingly 
than ever, and only in matters of great importance to the 
welfare of the Church. 4 

ART. IV. 
Formalities to be observed in inflicting the Interdict. 

3350. They are, generally speaking, the same as those 
required for excommunication and suspension, and therefore 

1 Stremler, p. 345. ~ Arg. cap. Non est, II de Spons.; Schmalzg., 1. c., n. 345. 
~ P. 349- 4 Ib. 



354 The Ecclesiastical Interdict. 

regard either the canonical admonition and the precept, or 
the trial, or the manner of pronouncing sentence. J As they 
have been already explained, we deem it unnecessary to 
repeat them here. 



ART. V. 
Effects of Interdicts. 

3351. Q. What are the effects of an interdict ? 

A. An interdict forbids the following acts: i. To cele 
brate Mass, or to assist at it, or to perform any other 
ecclesiastical function or assist thereat ; 2 2. To administer 
or receive certain sacraments ; 3 3. To give or receive 
ecclesiastical burial. 4 The interdict produces all these 
effects, if it is inflicted unrestrictedly ; but if it is imposed in 
a restricted manner, it will, of course, produce only such 
effects as the Superior interdicting may wish. 6 We shall 
now briefly discuss each of these three effects. 



I. Prohibition to celebrate or assist at Divine Service. 

3352. By divine service or ecclesiastical functions are here 
meant those functions which are usually performed only by 
Ecclesiastics, as the Mass, blessing of the baptismal font, of 
palms on Palm Sunday, of candles on the Feast of the Puri 
fication ; also the blessing of a church, of sacred vestments, 
of holy water ; also the saying of the office in choir. 6 Ac 
cording to the old law of the Church, as it existed down to 
the thirteenth century, it was absolutely forbidden, at any 
time during an interdict, to celebrate or assist at any of these 
functions. 7 

3353. But the rigor of this law was relaxed by Pope 

1 Cf. Schmalzg., 1. c., n. 49; Stremler, p. 363. ~ Cap. Permittimus 57 (v. 39). 

3 Cap. Response 43 (v. 39) ; Cap 16 de sent, excom. in 6. 

4 Cap. Quod in te II de pcenis et poenit. 5 Schmalzg., 1. c., n. 350. 
6 Ib., n. 361. 7 Cap. 57 (v. 39); Cap. 16 in 6 (v. II). 



The Ecclesiastical Interdict. 355 

Boniface VIIL, in his celebrated decretal Alma, which now 
forms the law of the Church, on this head. According to 
this decretal, it is allowed, at present, for Ecclesiastics, 
secular or regular, unless they are personally interdicted, 
in time of a general local interdict (but not during a partic 
ular local interdict, nor during a personal interdict, whether 
general or particular), daily to say Mass and to perform the 
other acts of divine service (officia divind] in all churches 
and monasteries, provided the following conditions pre 
scribed in the Cap. Alma by Boniface VIIL be observed : 
(a) That it be done in a low voice ; (b) with closed doors ; 
(c) without the sound of bells, without singing, or without 
the use of the organ ; (d) that those persons who are under 
excommunication, or a personal interdict, or have been the 
cause of the local interdict, be excluded. 

3354. These excommunicates or interdicted persons are 
to be excluded only in case they are excommunicated and 
interdicted by name, and denounced publicly as such ; for, 
as was seen, the faithful are bound to shun only those who 
are denounced. 

3355. Moreover, at present, according to the decretal 
Alma and later concessions, it is permitted, during a general 
local interdict, to celebrate Mass and perform the other 
divine functions, with all the customary solemnities and publi 
city, on Christmas, Easter, Pentecost, the Assumption of the 
Blessed Virgin, the Immaculate Conception and its Octave, 
and on Corpus Christi and its Octave. On these festivals, 
only those who are excommunicated by name and publicly 
denounced as such, and those whose excesses have caused 
the interdict, are to be excluded. 1 

2. Privation of the active and passive Use of 
certain Sacraments. 

3356. This prohibition extends not to all, but merely to 

1 Cap. Alma 24 in 6 (v. II). 



356 The Ecclesiastical Interdict. 

some sacraments. Prior to the time of Boniface VIII. the 
sacraments of Penance and the Holy Eucharist could be 
administered, during a general interdict, only to such as 
were dangerously ill. : Baptism and Confirmation could be 
administered to all. 2 But this Pope relaxed the severity of 
the above law, and granted that the Sacrament of Penance 
could be administered to all, and not merely to those who 
were dangerously ill ; 3 that the Holy Eucharist, however, 
could be given only to those who were dying, or danger 
ously sick, and that per modum viatici, and also to those who 
were in danger of death otherwise than by sickness, v.g., 
to those about to be engaged in battle, or about to enter upon 
a dangerous sea voyage. 4 

3357. The law, therefore, as at present in force, is that 
the sacraments of Baptism, Penance, and Confirmation can, 
during a general interdict, local or personal, be adminis 
tered to all persons whatever, except (a) to those who are 
the cause of the interdict, i.e., those guilty of the crime 
for which the interdict was imposed, and their abettors, 
favorers, and counsellors in said crime ; 5 (b) those who 
are under a special personal interdict. Holy Orders can 
not be conferred upon, nor can Extreme Unction be admin 
istered to any one during the time of a general interdict, 
personal or local. 6 Marriage, according to the more proba 
ble opinion, can be contracted by parties, even according to 
the Tridentine prescription Tametsi (where this is in force), 
during a general interdict, even in the place interdicted. 7 

3. Prohibition to give or receive Ecclesiastical Burial. 
3358. By Christian or ecclesiastical burial (scpnltura 

Cap. Quod in tell. (v. 38). 2 Arg. cap. Quoniam 19 (v. n). 

Cap. Alma cit. * Cap. Quod in te II (v. 38) ; Reiff., 1. c., n. 202, 203. 

Cap Alma cit. 

Cap. Quod in te cit. This decretal was issued by Pope Innocent III. (1198-1216.) 
Scbmalzg., 1. c., n. 358. 



The Ecclesiastical Interdict. 357 

ecclesiastic^ we here mean not only (a) the inhumation or 
interment in a sacred place, as the church or cemetery 
which is blessed, (b) but also the entire funeral obsequies 
or solemnities, namely, the tolling of bells, the bringing the 
remains to the church, all the prayers, religious rites, and 
ceremonies, such as chanting the office of the dead, cele 
brating Requiem Mass which are said or performed by the 
ministers of the Church, either in the church or at the grave. 1 

3359. Q. How does an interdict deprive persons of eccle 
siastical burial? 

A. We must distinguish between the various kinds of 
interdict, i. If the interdict is a general local one, all the 
faithful without exception, even though they be infants or 
insane, are forbidden to receive ecclesiastical burial, in 
the place interdicted. 2 We say, in the place interdicted;. 
hence, any of the faithful who may die, unless he be under 
a special personal interdict, can be conveyed outside the 
interdicted place and there receive ecclesiastical burial. 

3360. From the general rule just stated are exempted all 
ecclesiastical persons. 3 They can receive ecclesiastical 
burial, during a general local interdict, provided (a) they 
are not under a special personal interdict ; (b) have not 
given cause to the interdict ; (c) that the burial take place 
quietly, without the tolling of bells or any other religious 
or ecclesiastical solemnity. 4 

3361. 2. If the interdict be a special local one, there is no 
doubt that ecclesiastical burial is forbidden in the parties 
lar place, or church, or cemetery interdicted, except tG 



1 Cap. Quod in te cit.; Miinchen, 1. c., vol. 2, p. 212; Brabandere, Jur. Can. 
Comp., vol. 2, n. 774. 

2 Cap. Quod in te cit.; Cap. 8. in 6 (v. 7) ; Clem. Eos I (iii. 7). 

3 The words ecclesiastical persons are here used in their broadest sense, i.e., they 
signify not only the secular clergy, even those only in tonsure, but also religious, 
male and female. 

4 Cap QitoJ in te cit. 



358 The Ecclesiastical Interdict. 

Ecclesiastics, or at least to those Ecclesiastics who are at 
tached to the church interdicted. 

3362. 3. When the interdict is a particular personal one 
it is plain that all persons whatsoever, even though they be 
Ecclesiastics, who are under such an interdict, must be 
deprived of ecclesiastical burial, provided these persons be 
published by name as so interdicted, according to the 
Const. Ad Vitanda of Pope Martin V. The same holds of 
any person whose crime has been the cause of the inter 
dict. For such a one is always personally interdicted, even 
when the interdict of which he is the cause is local only. 

3363. 4. Where the interdict is personal, indeed, but 
general, v.g., if all the inhabitants of a city are interdicted, 
Stremler * holds that no one is deprived of ecclesiastical 
burial, as, according to the Const. Ad Vitanda of Martin V., 
only those who are interdicted by name and published as 
such must be shunned in divinis, but not such as are under 
censure only in a general way, as is the case in a general 
personal interdict. Schmalzgrueber z and Reiffenstuel, 3 
however, seem to dissent from this view, and to teach that, 
when the sentence of a general personal interdict is duly 
published, it brings all the inhabitants interdicted within 
the provisions of the bull of Martin V. 

3364. Note. According to the Const. Ad Vitanda of Pope 
Martin V., which constitutes the present law of the Church 
on this head, in all interdicts, local or personal, the persons 
who are affected by the interdict are not vitandi, and conse 
quently cannot be deprived of ecclesiastical burial, save 
when the interdict is officially made public, that is, when it 
is officially proclaimed by the competent ecclesiastical 
Superior that such a territory or place, such a people or 
such an individual, has been interdicted. 4 

1 P. 359- 2 L.c., n. 377. * L. v., t. 39, n. 213. 

4 Craiss., n. 6626; Schmalzg. I.e., n. 389. 



The Ecclesiastical Interdict. 359 

ART. VI. 
Punishments incurred for violating Interdicts* 

Q- What sin do lay persons commit, and what 
punishments do they incur for violating an interdict ? 

A. If during the time they are under a personal interdict 
they presume to receive any of the sacraments forbidden them 
by the interdict, they commit a mortal sin, being guilty of 
disobedience in a grave matter. In like manner do the 
faithful sin grievously, if they receive the sacraments in 
a place which is interdicted. x 

33.66. By reason of assisting at divine worship, they com 
mit a mortal sin in the following cases : 2 (a) If they compel 
an Ecclesiastic to celebrate publicly and solemnly in an 
interdicted place ; (b) If they dare to convene the people 
by the sound of bells or other public announcement, in 
order to assist at divine worship in an interdicted place ; 

(c) If they presume to hinder persons who are by name 
excommunicated or interdicted from leaving a church or 
sacred place, after being admonished by the clergy to leave ; 

(d) If they themselves, being requested to leave, refuse 
to do so. 3 Formerly laics also incurred excommunication 
reserved to the Roman Pontiff, in the four cases just men 
tioned. 4 At present, this punishment is no longer incurred,, 
being omitted in the Const. Apostolicce Sedis of Pius IX. 

3367- Q- What sin do Ecclesiastics commit, and what pun 
ishment do they incur, by violating an interdict ? 

A. i. They commit a mortal sin, when they violate an 
interdict, local or personal, by administering or receiving the 
sacraments, and also by celebrating in an interdicted place. 6 
2. Moreover, Ecclesiastics who celebrate Mass or exercise 
any other act of a sacred ordo while they are under a special 

1 Schmalzg., 1. 5, t. 39, n. 391. 2 Ib., n. 392. a Q em> Grams, 2, de sent, exconu 
4 Clem. Grams cit. 6 Schmalzg., I.e., n. 390. 



3^0 The Ecclesiastical Indcrdict. 

personal interdict, incur ipso facto irregularity, on the general 
principle that Ecclesiastics who violate a censure become 
irregular. 3. But when they knowingly (a) celebrate divine 
worship or cause it to be celebrated in places which are 
interdicted, either by the ordinary, or the delegated judge, 
or by the law, (b) or admit persons who are excommunicated 
by name to divine functions (pfficia divina), or to the sacra 
ments of the Church, or to ecclesiastical burial, they incur 
at the present day, according to the Const. Apostolicce Scdis 
of Pope Pius IX. (1869), only the interdict ab ingrcssu ccclesice, 
but they do not incur irregularity, J as they do not violate 
any censure incurred by them personally. 3 



ART. VII. 
What Interdicts may be imposed at the Present Day ? 

3368. Q. What interdicts are at present incurred ipso facto, 
according to the Common law of the Church ? 

A. We premise : As we have already explained, the Const. 
Apostolicce Scdis, issued by the saintly Pope Pius IX., in 1869, 
now forms the common law of the Church in regard to cor 
rectional punishments which are inflicted by the general 
law of the Church and incurred ipso facto, and all preceding 
legislation contrary to it is abolished. We now answer : 
Two, by the Const. Apostolicce Scdis, and two by the Coun 
cil of Trent, as continued in force by the Const. Apostolicce 
Sedis. 3 

3369. They are : I. " Interdictum Romano Pontifici 
speciali modo reservatum ipso jure incurrunt Universitates, 
Collegia, et Capitula, quocumque nomine nuncupentur, ab 
ordinationibus seu mandatis ejusdem Romani Pontificis pro 
tempore existentes ad universale futurum concilium appel- 

1 See Const. Ap. Sedis of Pius IX., Interdicta, n. 

9 Cf. Schmalzg., I.e., n. 394. 3 Const. Ap. Sedis, Interdicta, Denique II. 



The Ecclesiastical Interdict. 361 

lantia." 1 II. Scienter celebrantes vel celebrari facientes 
divina in locis ab ordinario, vel judice delegate, vel a 
jure interdictis, aut nominatim excommunicates ad divina of- 
ficia seu ecclesiasticam sepulturam admittentes, interdictum 
ab ingrcssu ecclcsicz ipso jure incurrunt, donee ad arbitrium 
ejus, cujus sententiarn contempserunt, competenter satis- 

fecerint." 2 

3370. III. " Non liceat capitulis, sede vacante, infra an 
num a die vacationis, ordinandi licentiam aut litteras 
dimissorias . . . alicui, qui beneficii ecclesiastici accepti, aut 
recipiendi occasione cretatus non fuerit, concedere. Si 
secus fiat, capitulum contraveniens subjaceat interdicto." 5 
IV. " Metropolitanus, suffraganeos episcopos absentes," 
(ultra secundum semestre tempus), " Metropolitanum vero 
absentem," (ut supra) " Suffraganeus episcopus antiquior 
residens, sub pcena inter dicti ingressus ecclesice eo ipso incur- 
renda, infra tres menses per litteras seu nuncium Romano 
Pontifici denunciare teneatur." 4 As will be seen, these four 
interdicts are personal, not local. 

3371. Besides these four, the Const. Apostoliccz Scdis of 
Pius IX. retains the interdicts made in regard to the elec 
tion of the Roman Pontiff and the internal regimen of 
religious communities, in the following manner: " Quse 
vero cen suras . . . inter dicti nostris aut prasdecessorum 
nostrorum constitutionibus, aut sacris canonibus, prseter eas 
quas recensuimus, latse sunt, atque hactenus in suo vigore 
perstiterunt, sive pro R. Pontincis electione, sive pro interno 
regimine quorumcumque ordinum et institutorum regula- 
rium, necnon quorumcumque collegiorum, congregationum, 
ccetuum, locorumque piorum, cujuscumque nominis aut 
generis sint, eas omnes firmas esse, et in suo robore per- 

1 Const. Ap. Sedis, Interdicta, Denique^ I. 2 Ib., II. 

3 Cone. Trid., sess. vii., cap. 10 de Ref. 

4 Ib., sess. vi., c. i de Ref. ; Cf. Soglia- Vecch. , vol. ii., p. 368; Avanzini, Com. 
in Const. Ap. Sedis, p. 58 



362 The Ecclesiastical Interdict. 

manere volumus et declaramus." * All other interdicts latce 
sententice are therefore abolished at present. 

ART. VIII. 
How do Interdicts lapse ? 

337 2 Q- How do interdicts lapse ? 

A. i Interdicts inflicted for a specified time or until a cer 
tain thing is done, lapse of themselves (as excommunication 
and suspension), when the time has expired, or the condi 
tion been fulfilled. Before the expiration of such time or 
the fulfilment of the condition in the case, the interdict 
ceases only by absolution or by pardon (dispensatione), which 
no one can give save the person who inflicted it, or his 
Superior. 2 2. If it has been imposed per modum censurce, 
and consequently without any fixed time, it lapses, as a rule, 
only by absolution, as suspension and excommunication 
would in a similar case. 

3373. We say, as a rule; for there are some exceptions. 
Thus a general personal interdict lapses with regard to the 
entire community by the very dissolution or dismember 
ment of such community, and with regard to individuals, as 
soon as they cease to be members of this community. Thus 
again, a special local interdict ceases, not only by absolution 
but also by the destruction of the place (y.g., of the church) 
interdicted. A general local interdict ceases only by 
absolution. 

3374. Having shown when interdicts lapse by abso 
lution or by pardon, it remains to be seen by whom 

1 Const. Ap. Sedis of Pius IX., Interdicta, Quae vero. 

2 Schmalzg., 1. c., n. 398. However, Bishops are authorized by the Council of 
Trent (Sess. xxiv., c. 6 de Ref.) to absolve or dispense from all interdicts (also from 
all suspensions) arising from a crime that is secret, even though reserved to the 
Apostolic See, except however (a) that proceeding from wilful homicide () and 
those crimes which have already been carried before a legal tribunal. 



The Ecclesiastical Interdict. 363 

this power of pardoning or granting the absolution can be 
exercised. When the interdict is local, whether general or 
particular, and even though reserved, it cannot be raised or 
relaxed save by the ecclesiastical Superior who has episco 
pal jurisdiction over the place interdicted. The same holds 
with regard to a general personal interdict, since it can be 
raised only by a person having jurisdiction in foro externo 
over the community interdicted. Otherwise, if every 
Ecclesiastic could raise such an interdict, it would naturally 
follow that ecclesiastical discipline would be weakened, and 
the punishment in question might frequently be remitted 
against the will of the Superior by whom it was imposed. 1 
3375. But when the interdict is a particular personal one, 
and not reserved, any confessor, at least according to a 
probable opinion, can absolve from it in the same manner as 
excommunication, when not reserved, can be remitted by 
any confessor. 2 Of course, if the interdict in the case (a 
special personal one) is reserved, the absolution can be 
granted only by the person to whom it was reserved or by 
his Superior. 8 

1 Schmalzg., 1. 5, t. 39, n. 400. 

2 Of course, the interdict (specially personal) must be inflicted ajtire (i.e., by the 
general law of the Church, or by particular law) ; for an interdict imposed ab homine 
per sent. spec, is always reserved. 

3 Schmalzg., 1. c., n. 401. 



CHAPTER IV. 

INTERMISSION OF DIVINE SERVICE. 
(Cessatio a Divinis.) 

3376. The cessatio a divinis is a suspension or discontinuance 
of divine service (officia divind) in a place where it can and 
may otherwise be held. It is not a punishment properly 
speaking, and consequently not a correctional punishment or 
censure. For while it is ordered only on occasion of most 
grievous offences, yet it is not inflicted precisely in punish 
ment of such crime, but as a sign of grief and pain with 
which the Church is afflicted on account of a most grave 
injury inflicted upon her and the honor of Almighty God, 
and as a reparation for such injury, L and also in order that 
by this public manifestation of grief and horror the delin 
quent may be compelled to desist from his wicked course 
and make due satisfaction. 2 It is a simple prohibition upon 
Ecclesiastics, enjoining them not to hold divine service in a 
certain place or places. 

3377. This discontinuance of divine service, though an 
imitation of the interdict, and bearing a marked resem 
blance to it, is yet distinct from it and differs from it in 
various respects. First of all, this interruption is not a 
censure or correctional punishment, as was seen, but a simple 
prohibition. Hence those who violate it commit, indeed, a 
grievous sin, but do not incur irregularity. Next, it is 
always local, never personal. 

3378. Finally, the effects of tne intermission under discus- 

1 Schmalzg., 1. c., n. 402. 

3 Ex cap. Irrefragabili 13 de off. ord. (i. 31); Cap. 2 in 6 (i. 16) ; Cap. Quam- 
vis 8 de off. ord. in 6. 



Intermission of Divine Service. .365 

sion are more far-reaching- than even those of the interdict. r 
For it is the exact observance of what was presented for 
the time of an interdict by the older law of the Church, as 
in force prior to the mitigation introduced by Pope 
Boniface VIII., in his famous decretal Alma Mater, as was 
seen. 2 Hence, during a cessatio a divinis, it is not allowed 
to celebrate divine service or Mass, except once a week for 
the renewal of the sacred species, and even then only in the 
most private manner possible. Nevertheless many canonists, 
while admitting this to be according to the letter of the law, 
yet think that the custom to the contrary has sufficiently 
authorized the application of the Cap. Alma Mater also to 
the cessatio a divinis* 

3379. Q. What are the effects of the intermission of divine 
service in question ? 

A. Speaking in general, these three : the privation (a) of 
divine worship ; (b) of certain sacraments ; (c) of ecclesiasti 
cal burial. 4 Are all these effects annexed to every cessatio 
a divinis, or can the ecclesiastical judge inflict a cessatio a 
divinis in such a manner that it will produce but one or two 
of the above effects? The Pontiff certainly can. As to 
others, the question is controverted. Some affirm that 
every ecclesiastical judge can inflict a partial cessation. 
Others deny this, on the ground that the above effects are 
all annexed to a cessation by the general law of the Church, 5 
which cannot be changed by the inferior. 6 

3380. \ie shall now briefly explain how the cessation pro 
duces each of the three above effects. We have already 
sufficiently set forth how divine services (pfficia divind] are 
to be discontinued. Next, the sacraments which, as we 
have seen, can be administered during an interdict, can be 
also given during a cessatio. Finally, as to the ecclesiastical 

1 Craiss., n. 6638. 2 Schmalzg., 1. c., n. 407. 

3 Stremler, 1. c., p. 365. * Cap. Non estvobis II, de sponsal 

6 Arg., cap. II cit. 6 Schmalzg., 1. c. n. 406. 



366 Intermission of Divine Service. 

burial, a distinction must be drawn between the solemnities 
or ceremonies, such as saying the office of the dead, Mass 
of requiem, or the other prayers usually said by the priest 
at the funeral and the inhumation or interment in blessed 
or consecrated ground. * The latter is allowed during a 
cessatio ; the former are forbidden, since they are officia 
divina, which are prohibited. a 

3381. Who can inflict a cessation? We premise : a cessation 
is imposed (a) either by the law itself (a jure), and ensues ipso 
facto when a Church is polluted or execrated ; (b) or by the 
proper Superior (ab hominc). Observe, in the present article 
we speak only of cessation imposed ab homine. We now 
answer : It can be ordered only by one who has jurisdiction 
in foro externo, as we have seen in the case of excommunica 
tion, suspension, and interdict. Hence it can be inflicted 
only (a) by the Pope ; (b) by Bishops and others possessed 
of quasi-episcopal jurisdiction ; (c) by the Chapter, through its 
Vicar-Capitular sede vacante, (with us, by the administrator 
of the vacant diocese. 4 ) 

3382. For what kind of crimes and in what manner can the 
cessation be ordered? i. The crime must be of the gravest 
character and, as a rule, of such a nature as to inflict very 
serious injury upon the Church, v. g., laws enacted against 
the liberties of the Church ; taxes or contributions unjustly 
imposed on Ecclesiastics. 5 2. This crime should be notorious 
by notoriety of fact, so that the scandal given by it may be 
remedied by the cessation. 3. The order for the cessation 
must be given in writing, setting forth the cause or crime for 
which it is imposed. 4. The delinquent must be first 
canonic ally warned. 6 

3383. Observation. At the present day, the intermission 

1 Schmalzg., 1. c., n. 413. 2 Stremler, 1. c., p 365. 

3 For the acts which cause a church to be polluted, see Sabetti, Comp., n. 916, q. 2. 

4 Schmalzg., 1. c.. n. 414. 5 Glossa, in cap. 2 de off. ord. in 6 (i. 16.) 
6 Schmalzg., I. c., n. 417. 



Intermission of Divine Service. 367 

of divine service or cessatio a divinis has almost completely 
fallen into disuse, as Stremler * says. Interdicts, in like 
manner, as was seen, are now inflicted much less frequently 
than in former times ; in fact, they may be said to have gone 
out of use, 2 at least, so far as their former comprehensive 
effects are concerned. Their observance, considering the 
temper of our times, would be scarcely feasible, nay, would 
redound rather to the destruction than the edification of the 
members of the Church. 

3384. Yet we flatter ourselves that our discussion of inter 
dicts and cessations has not been altogether abortive and 
useless. For while the application of the principles under 
lying these measures has changed at present, yet the 
principles themselves are as true to-day as they were seven 
hundred years ago. Besides, both the interdict and the 
cessation may be and are sometimes inflicted at the present 
day, though only in a mild form. 

1 P. 366. 

2 Fessler, Excom., p. iv. ; Schulte, K. K., vol. ii., p. 391 ; Walter, 186, p. 371. 



FINIS. 



CONTENTS, 



PAGE. 
BOOK III. ECCLESIASTICAL PUNISHMENTS, . 7 



PART I. 

ECCLESIASTICAL PUNISHMENTS IN GENERAL. 

CHAPTER I. 
True Idea of Ecclesiastical Punishment. 

Art. I. Has the Church a Right to Inflict Punishments? . 7 
Art. II. What is a Punishment ? ... 9 

Art. III. What are Crimes ? . .10 

CHAPTER II. 

The Various Kinds of Ecclesiastical Punishments. 

Art. I. Penances, . . 12 

Art. II. Punishments, ... .... 12 

i. Preventive and Repressive Punishments, . . 13 

2. Reforming and Vindicative Punishments, . . .13 
Art. III. Procedure for Inflicting Punishments, . . .17 
Art. IV. Ordinary and Extraordinary Punishments, . .21 
Art. V. Punishments ferendce and latce sententia, . . . 23 
Art. VI. Temporal and Spiritual Punishments, . . 23 

CHAPTER III. 

When and by Whom Ecclesiastical Punishments can be 

Inflicted. 

Art. I. For what Unlawful Acts can a Person be Punished ? . 25 
Art. II. When are Persons Guilty of Unlawful Acts Freed 

from Punishment ? . 29 

i. Ignorance, ........ 30 



3 7 Contents. 

2. Forgetfulness and Inadvertence, . . . 35 

3. Violence and Fear, . 36 

Art. III. Who can Punish ? . 37 

i. Can the Bishop Exercise Contentious Jurisdiction Out 

of His own Diocese ?...... 37 

2. Can a Bishop Exercise Voluntary Jurisdiction Outside 

His own Diocese ? . 38 

3. Rules which Guide the Judge, when he Inflicts Pun 
ishment, . 41 

Art. IV. Upon whom can Punishments be Inflicted ? . .44 



PART II. 

ECCLESIASTICAL PREVENTIVE PUNISHMENTS. 
CHAPTER I. 

Spiritual Exercises. 

Art. I. How are Spiritual Exercises Preventive Remedies ? . 47 
Art. II. How are they Imposed ? 49 

CHAPTER II. 
Canonical Admonitions, 

Art. I. What are the Canonical Warnings ? . . . .55 

Art. II. When can the Warnings be Given ? . . . . 56 

Art. III. Is it Necessary that they shall be Given in a Legal 

Manner? . . . . . . -57 

Art. IV. How are they Given Paternally ? .61 

Art. V. How are they Given in a Legal Form ? . 65 

CHAPTER III. 

The Precept. 

Art. I. What is the Precept ? . .... 68 

Art. II. When can it be Enjoined ? 69 

Art. III. How is it Given ? i . . . 7 2 



Contents. 37 J 

PART III. 

REPRESSIVE VINDICATORY PUNISHMENTS. 

SECTION I. 

Spiritual Vindicatory Punishments. 
CHAPTER I. 

Dismissal of Rectors also in the United States. 

Art I. Correct Idea of Dismissal, ... -77 

Art, II. Dismissal of Irremovable Rectors, . . 79 

i. Dismissal of Irremovable Rectors where the General 

Law fully Obtains, .... -79 

2. Dismissal of Irremovable Rectors in the United States, 84 
3. Dismissal of Rectors who are not Irremovable, . . 89 
4. Dismissal of Rectors in English-Speaking Countries 

Outside of the United States, . . . -91 
I. Dismissal in England, ...... 91 

II. Dismissal in Ireland, etc 93 

Art. III. Support of Dismissed and Suspended Ecclesiastics, . 95 
i. Support of Dismissed Rectors, . -95 

2. Support of Suspended Ecclesiastics, . . . 101 

CHAPTER II. 

Transfers as Punishments. 

Art. I. Nature and Division of Transfers, .... 105 
Art. II. Transfer of Irremovable Rectors also in the United 

States, . .107 

Art. III. Transfer of Removable Rectors also in the United 

States, . . no 

CHAPTER III. 

Dismissal Combined with Disqualification for Office. 

Art. I. Character of this Punishment, 114 

Art. II. Formalities Duration, 114 



3/2 Contents. 

CHAPTER IV. 

Degradation of Ecclesiastics. 

Art. I. Nature and Effects of this Punishment, . .116 
Art. II. Manner of Inflicting It, 118 

CHAPTER V. 

Infamy as a Canonical Punishment. 

Art. I. True Idea of Canonical Infamy, . . . .119 
Art. II. Effects of Infamy of Law or Fact, . . . .122 

CHAPTER VI. 

Canonical Disability for Ecclesiastical Offices. 

Art. I. Character of the Punishment, . . , . .124 
Art. II. Effects of this Disability, 125 

CHAPTER VII. 

Canonical Criminal Unfitness for Orders and the Ecclesi 
astical State. 

Art. I. Nature of this Unfitness, 126 

Art. II. Effects of this Punishment, 128 

i. Incapacity for Orders, 129 

2. Incapacity to be appointed to Ecclesiastical Offices, . 129 

3. Dismissal from Ecclesiastical Offices, . . .130 

Art. III. Causes of this Disqualification, . . . . . 131 

i. Criminal Causes, . . . . . . .131 

2. Natural Causes, .132 

Art. IV. Does Ignorance Excuse from this Disability ? . .134 
Art. V. How this Disability is Removed, .... 135 

SECTION II. 

Temporal and Corporal Vindicatory Punishments. 
CHAPTER I. 

Various Kinds of these Punishments. 

Art. I. Pecuniary Fines, 138 

Art. II. Ecclesiastical Imprisonment, . . . . 141 

Art. III. Exile in a Mild Form, 142 



Contents. 



373 



PART IV. 

REPRESSIVE REFORMATIVE PUNISHMENTS. 

SECTION I. 
Reformative Punishments in General. 

CHAPTER I. 
Nature of these Punishments. 143 

CHAPTER II. 
Various Kinds of Reform Punishments. 

Art. I. Reformative Punishments a jure and ab homine, . 146 

Art. II. Reform Punishments ferendce and latcz sententice, . 148 
Art. III. General Remedies, . . . . . . .149 

CHAPTER III. 

What Persons can Inflict them ? 

Art. I. Who are Vested with Ordinary Power ? . . .152 

Art. II. Who are Vested with Delegated Power? . . . 155 

Art. III. Conditions of the Exercise of this Power, . . -157 

CHAPTER IV. 

Upon Whom can they be Imposed ? 

Art. I. Adult Members of the Church, 161 

Art.. II. Entire Communities, . 162 

Art. III. The Pope and Bishops 164 

Art. IV. Strangers and Travellers, 165 

CHAPTER V. 

For what Causes can they be Inflicted ? 

Art. I. Crimes which are Grave, . .... 167 

Art. II. They should be Preceded by the Milder Remedies, . 170 

Art. III. Incorrigibleness, .172 

Art. IV. Crimes which are entirely of the Past, . .173 
Art. V. Future Crimes, .174 



3 74 Contents. 

CHAPTER VI. 

Formalities to be Observed in Inflicting them, also in the 

United States. 

Art. I. The Canonical Admonitions and the Precept, . 178 

i. Necessity of the Previous Admonitions, . . 179 

2. The Warnings Repeated Three Times, . . .185 

Art. II. The Trial, .... . . . 186 

i. The Necessity of a Trial according to the General Law, 178 
2. The Formalities of the Trial according to the Sacred 

Canons, . . . . . . . .192 

3. The Trial according to the Instruction of June 1 1, 1880, 182 
4. The Trial in the United States according to the In 
structions of 1878 and 1884, . . . 193 
5. The Trial in other Missionary Countries, . .194 

Art. III. The Sentence, . . . . . . .196 

i. Weighing of the Evidence, 197 

2. Formalities of the Sentence, ..... 200 
3. Formalities of the Sentence in the United States, . 204 
4. Penalties Incurred for Violating these Formalities, . 207 
5. Wording of the Sentence, . . . . .211 
6. Publication of the Sentence, . . . . .212 

CHAPTER VII. 

Appeals against Repressive Correctional Punishments. 

Art. I. Is it Allowed to Appeal against these Punishments, .215 
Art. II. Effects of Appeals against Censures already Inflicted, 215 
Art. III. Appeals against the Publication of Censures, . 220 
Art. IV. Effect of Appeals against Threatened Censures, . 223 
Art. V. Procedure before the Judge ad quern in adjudicating 

Appeals against Unjust Censures, . . .226 

Art. VI. Procedure before the Metropolitan in Appeals against 

Invalid Censures, . . 229 

i. Procedure when the Censure is Certa ; n y Invalid, . 229 

2. Procedure when it is Doubtful whether the Censure is 

Invalid, 231 



Contents. 
3. How the Metropolitan imparts the Absolutio ad Cau- 



375 



telam, . . . . . . . . 233 

Art. VII. Procedure before the Metropolitan in Appeals against 

Threatened Censures, . . . . . . 239 

CHAPTER VIII. 

Unjust and Invalid Correctional Punishments. 

Art. I. When are Correctional Punishments Unjust and In 
valid ? . . . . . ... 242 

Art. II. Effects of Correctional Punishments which are Just 

and Valid, . . . . . . . . 243 

Art. III. What Effects are Produced by Unjust Censures ? . 244 
Art. IV. Effects of Invalid Correctional Punishments, . 247 
Art. V. Effects of Censures which are a jure and late sententicz, 252 

CHAPTER IX. 

Punishments Incurred for Disregarding Censures. 

Art. I. Irregularity as a Punishment for Violating Censures, 254 
Art. II. Dismissal as a Punishment for Disregarding Censures, 257 
Art. III. Other Punishments Incurred, .... 257 

CHAPTER X. 

Who can Release from Repressive Correctional 
Punishments ? 

Art. I. Do these Punishments Cease of themselves ? . . 259 
Art. II. Who can Release from them when they are Inflicted a 

jtire and incurred ipso factol .... 361 
Art. III. Who can Remit them when they are ab homim /> . 265 

CHAPTER XL 

Formula, Conditions, and Modes of Release from 

Correctional Punishments. 
Art. I. Formula of Release, . . .... 267 

Art, II. Conditions of Release, 268 

Art. III. Modes of Release, . . . . . . . 270 



Contents. 
SECTION II. 

Repressive Reform Punishments in Particular. 
CHAPTER I. 

Excommunication. 

Art. I. Correct Notion of Excommunication, . . . 274 

Art. II. How many Kinds of Excommunication are there ? . 278 

Art. III. What Excommunicates are to be Shunned ? . . 280 

i. Former Discipline, 280 

2. Present Discipline, . ..... 280 

3. Publication of the Excommunication, . . . 284 

4. Intercourse of the Faithful with tolerati, . . . 284 
Art. IV. Canonical Effects produced by Excommunication 

even at Present, ..... . 286 

i. Exclusion from the Sacraments, .... 289 

2. Excommunicates cannot Administer the Sacraments, . 292 
3. Withdrawal of the Sitffragia Ecclesice, . . 295 
4. Excommunicates cannot Assist at the Mass or other Ec 
clesiastical Functions, ...... 296 

5. Disqualification for Appointment to Ecclesiastical Offi 
ces, 299 

6. Withdrawal of the Communicatio forensis, . .302 

7. Loss of the Rights of Jurisdiction, .... 304 

8. Refusal of Christian Burial, . 307 
9. Exclusion from the Company of the Faithful in the 

Relations of Every-day Life, ..... 309 

1. Former Discipline of the Church, . 309 

2. Present Discipline, 311 

3. In what Social Matters are the Faithful Bound to Shun 

a Vitandus ? . . . . . . . .312 

4. When is Social Intercourse Allowed with a Vitandus ? 314 
Art. V. Excommunications in force at the Present Day, . 317 

i. The Const. Apostolicce Sedis of Pius IX., . . .317 

2. Scope and General Outline of this Constitution, . 318 
3. Reform Punishments of the Council of Trent Retained 

by Pius IX., . ...... 319 



Contents. 377 

4. Reform Punishments Regarding the Election of the 

Pope, and the Regimen of Religious Orders, .322 

5. The Bearing of the Constitution of Pius IX. on Vindi 
catory Punishments, 324 

6. How Correctional Punishments are reserved in this 

Constitution, 325 

CHAPTER III. 

Suspension. 

Art. I. True Idea of this Punishment, . . . 327 

Art. II. Various Kinds of Suspension, . . 330 
Art. III. Effects of this Punishment, .331 

Art. IV. Punishments Incurred for Violating Suspensions, . 335 

Art. V. Formalities in Inflicting Suspensions, . 338 

Art. VI. Release from Suspensions, . . . 34 

Art. VII. Suspensions a jure and latce sent, in force at present, 340 

CHAPTER III. 

The Ecclesiastical Interdict. 

Art. I. Correct Notion of the Interdict, . . 345 

Art. II. Various Kinds of Interdicts, . . 347 

Art. III. By Whom and for what Cause can they be Imposed, 352 

Art. IV. Formalities in Inflicting the Interdict, . 353 

Art. V. Effects of the Interdict, . . 354 

i. Prohibition to Celebrate or Assist at Divine Service, 354 

2. Privation of the Active and Passive use of Certain 

Sacraments, . . ... -355 

3. Prohibition to Give or Receive Ecclesiastical Burial, 356 

Art. VI. Punishments Incurred for Violating Interdicts, . . 359 

Art. VII. What Interdicts may be Imposed at the Present Day? 360 

Art. VIII. How do Interdicts Lapse? 3 62 

CHAPTER IV. 

Intermission of Divine Service. 

Art. I. Nature of this Punishment, 3 6 4 

Art. II. Its Causes and Effects, 3^5 



ALPHABETICAL INDEX. 



(The figures Indicate the marginal numbers, not the pages.) 



Admonitions, paternal, 1754; legal, 
1759, 1784; obligation, 2047. 

Ad Nutum, 1901. 

Ad Vitanda, Const., Martin V., 3175. 

Appeals, 3028 ; against censures, 
3029 ; before censure, 3046 ; after 
censure, 3030 ; in temporal effects 
of censures, 3031 ; procedure, 3051. 

Appeal ex Capite Nullitatis, 3071. 

Apostolicae Sedis, Const, of Pius 
IX.. aim 3263 ; outline, 3264 ; cen 
sures, 3265 ; Council of Trent, 
3266 ; Election of Pope, 3273 ; 
religious orders, 3274 ; Vindicatory 
and reform punishments, 3277 sq. 



Benedict XIV., Const, ad Militantis, 

3037, 3048. 

Bishop, power to punish, 1720, sq. 
Burial, Christian, 3236. 



c 



Causae Criminales, 1677. 
Causae Disciplinares, 1678. 
Causae Matrimoniales, 1994. 
Canonical Proof, 2089. 
Censures, just, 3055 ; unjust, 3056, 
3089 ; doubtful, 3057. 



Church, right to punish. 1658. 

Christian Burial, 3236 ; refusal, 8237 ; 
excommunicates, 3238. 

Coercive Power, 1984; of Pope, 1986; 
of Bishops, 1987 ; of Metropolitans, 
1987 ; of Vicars-General, 1990 ; of 
Religious Superiors, 1991 ; of Plen 
ary and Provincial Councils, 1992 ; 
of Rectors, 1992 ; of Delegates, 
1993. 

Correctional Punishments, 3088 ; 
just and unjust, 3089 ; valid and 
invalid, 3090. 

Costs, of trial. 2095. 

Crime, 1663 ; different from sin, 1664. 

Cum Magnopere, Instr. S. C. de Prop. 
Fide, 1672, 1677, 1687, 1696, 1729, 
1745, 1755, 1763 sq. 

D 

Degradation, 1905; verbal and real, 
1907; causes, 1909; form, 1910. 

Deposition, 1902; form, 1903; dura 
tion, 1903. 

Disabilities for ecclesiastical offices, 
1922, 3216. 

Dismissal from office, 1807, 1808. 

Dismissal of irremovable rectors, 
1815; causes, 1816; form, 1825 ; 
ipso jure, 1825 ; in the United 
States, 1827; in England, 1853; 
in Ireland, 1856. 



Alphabetical Index. 



379 



Dismissal of removable rectors, 1841 ; 
decision S. C. de Prop. Fide of 
March 28th, 1887, 1844; causes, 
1843; form, 1842; in England, 
1854. 

Disqualification for Ecclesiastical 
Offices, 1923; nature, 1922; effects, 
1924, 

Disqualification for orders, 1925 sq. 

E 

Excommunication, 3160; true idea, 
3167; kinds, 3170; effects, 3186; 
publication, 3181. 

Excommunicates, to be shunned, 
3173; tolerated, 3182 ; social inter 
course, 3243 sq. 

Excommunicatus vitandus, 3200. 

Excommunicatus toleratus, 3201. 

Ex capita nullitatis, 3068 ; appeal, 
3071. 

Ex Inf. Conscientia, 2042. 

External forum, 2043. 

F 

Fear, exempts from punishment, 1716. 

Fines, pecuniary, 1955. 

Forgetfulness, 1715. , 

Forum externum, trial, 2086, 2087, 
3038. 

Forum internum, 2043; trial, 1085, 
2085. 

Formalities, of trials, 2078 ; of sen 
tences, 3005 ; obligation, 3012 ; 
. violation, 3016. 



Ignorance, 1702, sq. 
Imprisonment, ecclesiastical, 1963; in 

the United States, 1964. 
Inadvertence, 1715. 
Incorrigibleness, 2030. 



Infamy, 1913 ; of law and fact, 1914 ; 
causes, 1916 ; per sententiam, 1919 ; 
ipso jure, 1916 ; effects, 1920 sq. 

Inhabilitas, 1922. 

Instruction of the S. C. de Prop. Fide 
of 1878, 1677, 1681. 

Irregularity, 1925; causes, 1928; 
effects, 1931 ; crimes, 1936; nat 
ural defects, 1939; ignorance, 1943. 

Irregularitas, release, 1946; in the 
United States, 1953. 

Irregulares, 1926. 



Judge ad quern, 3051 ; appeals, 3051, 
3052. 

Jurisdiction, 1719 ; contentious, 1720, 
1724; voluntary, 1722 ; ordinary, 
1726; delegated, 1726; loss, 3228. 



Legal Admonitions, 1785. 
M 

Maynooth, synod of, 1856. 
Metropolitan, 3022 ; in appeals, 3055, 

3059. 
MonitioCanonica, 1971, 2031. 

o 

Oath in England and Ireland, 1858. 
Orders, 1925 ; disqualifications, 1926. 



Pius IX., Const. Apostolicse Sedis, 

3262. 

Penance, 1665. 
Pecuniary Fines, 1955; in the United 

States, 1962. 
Praeceptum, 1771, 1789 ; extrinsic 

form, 1797. 



3 8o 



Alphabetical Index. 



Preventive Remedies, 1G66, 1737. 

Privatio Definitiva, 1808. 

Punishments, repressive, 1656; pre- 

. ventive, 1666; vindicatory, 1656; 

ordinary, 1685; discretionary, 1688 ; 

ferendae and lat;e seritentite, 1686 ; 

temporal and spiritual, 1689. 

Publication, of sentence, 3021; of cen 
sure, 3022 ; aim, 3023 ; mode, 
3024; appeal, 3027, 3040. 

R 

Reformative remedies, 1966; char 
acter, 1968; duration, 1981; grada 
tion, 2026. 

Release from censures, 3124 ; power, 
3124; conditions, 3148; form, 
3144; kinds, 3152. 

Release ad Cautelam, 3069-3078. 

Remedies, preventive, 1730; reforma 
tive, 1730. 



Sentence, personal motives, 2094; 

form, 2096-3004; in the United 

States, 3005-3011 ; wording, 3019; 

publication, 3021. 
Spiritual Exercises, 1742. 
Strangers, punishable, 2018. 
Suffrages of the Church, 3208. 
Summaria facti Cognitio, 1747, 

1750. 
Support, of dismissed Ecclesiastics, 

1859; suspended, 1874; source, 

1879. 



Suspension, 3282 ; nature, 3286 ; 
kinds, 3291 ; ab officio, 3294; a 
beneficio, 3295; effects, 3296; 
publication, 3300 ; violation, 3307. 

Suspensive appeal, 3046, 3051. 



Third Plenary Council of Balti 
more, 1676. 1740, 1773, 1861, 
1878, 2055 sq. 

Transfers, 1882 ; kinds, 1883 ; causes, 
1884 ; form, 1884. 

Transfer of irremovable rectors, 1885 ; 
causes, 1887 ; form, 1890 ; trial, 
1894 sq. 

Transfer of removable rectors, 1895 ; 
decision S. C. de Prop. Fide, 1895 ; 
causes, 1896 ; to an inferior place, 
1897 ; for merit or demerit, 1898. 

Travellers, punishable, 2015 sq. 

Trial, ecclesiastical, 1825. 2065 ; obli 
gation. 2067; form, 2078-2080; 
in the United States, 2081 ; in Ire 
land and P]ngland, 2083. 

u 

Unjust Censures, 3093. 
V 

Vindicatory Punishments, 1805 sq. 
Violation of censures, 3117 ; penalties, 

3118 sq. 
Violence, 1716. 

w 

Warnings, canonical, 1674, 1697 ; 
necessity, 2047; three, 2054, 2061, 



PRINTED BY BENZIGER BROTHERS, NEW YORK. 



















*"iw i 



















V 

s 
T 









BQV 198 .85 1895 V.3 SMC 

Smith, S. 

Elements of ecclesiastical 

law